Joint
Submission presented by the International Coalition for an Optional Protocol to
the International Covenant on Economic, Social and Cultural Rights
General
Assessment
1. The
NGO Coalition for an Optional Protocol for the International Covenant on Economic,
Social and Cultural Rights (NGO Coalition), a
group comprised of national, regional and international organisations as well
as individuals supporting the adoption of a comprehensive Optional Protocol to
the International Covenant on Economic, Social and Cultural Rights (ICESCR), welcomes
the draft prepared by the President of the Open Ended Working Group on an
Optional Protocol to the ICESCR (OEWG).
2.
The need for access to justice for
those whose rights have been violated is the imperative which drives our
participation in this process, both in Geneva and in our work at the national
level. This engagement mirrors the concern expressed by governments regarding
the current lacuna in procedures to render Economic, Social and Cultural rights
(ESC rights) justiciable at the international level. It is these shared concerns
which motivates the comments offered in this document. Our aim is to ensure
that the best possible Optional Protocol to the ICESCR is swiftly adopted, such
that current gaps in protection are finally remedied.
3. The
Draft Optional Protocol prepared by the President of the OEWG is generally a
well-conceived and balanced document, which reflects the main discussions and
opinions expressed previously in the OEWG, and draws on language and principles
set by existing human rights mechanisms. The draft is a good starting point to
further the negotiation of an Optional Protocol that should promote similar
protection to economic, social and cultural rights as to other human rights
whose protection already benefits from communication and inquiry procedures.
4.
Motivated
by a widespread concern for the protection of economic, social and cultural
rights, the NGO Coalition
has some concerns regarding a number of critical issues, particular those that
would substantially impact on the scope and effectiveness of the communication
mechanism. The NGO Coalition would also like to share some views regarding some
of the solutions offered by the draft on further issues that affect those who
have suffered, or are at risk of suffering rights violations.
“A la carte” and
“limited” approaches. Article 2
5.
As
expressed in previous sessions of the OEWG, the NGO Coalition in favor of an
Optional Protocol strongly opposes any à la carte option reflected tentatively
in Article [2.2]. Similarly, any “limited” approach – excluding either certain
rights or certain types of duties from the communications system – should be
firmly rejected.
6.
Any
"a la carte" or "limited" options would perpetuate a
historic hierarchy of rights, wrought in a different political age. It would
foster an inequality of review procedures within the human rights monitoring
mechanisms. It would ignore the broad-ranging jurisprudence and legal
enforcement of economic, social and cultural rights in all regions of the
world. Most importantly, it would ignore the needs of our shared constituents,
those who suffer violations of their economic, social and cultural rights, for
a universal standard of review which among other things might serve as a model
for the enforcement of ESC rights at the domestic level. Currently those
individuals and groups of individuals who are denied justice at the domestic
level for violations of ESC rights have no comprehensive international
recourse.
7. “A la carte” and/or “limited” approaches
should be rejected, not only as the draft Protocol is an “Optional” procedural
mechanism to assist in monitoring the good faith implementation by states
parties of the ICESCR, without violation, but also for the following reasons:
a.
Rights
are interdependent and indivisible: they cannot be treated like items on an
international law menu;
b.
An
“a la carte” approach to the Optional Protocol to the ICESCR would be
unprecedented among UN human rights treaties and would set an unfortunate and
retrogressive precedent on the right to a remedy for human rights violations.
It would weaken the indivisibility and interdependence of all human rights,
suggesting that while the protection of civil and political rights accepts no
exception, the protection of ESC rights can be selective, and thus left to the
State party’s convenience or preference.
c.
The
complaints mechanisms related to the ICCPR, CEDAW, ICERD, Convention on the
Rights of Persons with Disabilities, and the Convention on the Protection of
Migrant Workers – apply to certain ESC rights protected by the respective
treaty; accepting either an “a la carte” or a “limited” approach would enshrine
in law normative inconsistencies undermining legal certainty.
8.
While
the “limited” approach, which would, by contrast to the “a la carte” approach,
exclude certain types of duties flowing to states, has not been reflected in
the drafting of Article 2.1 (with the exception of the possibility of excluding
Part I from the communications mechanism), it has been suggested by certain
delegations in previous OEWG Sessions. Attempts to exclude some type of duties – such as the duties to
fulfill, according to the tripartite classification employed by the Committee
on Economic, Social and Cultural Rights ( the Committee) or the duty to take
steps to the maximum of available resources, have no precedent in any other UN
human rights communications mechanism, including those which extend to
violations of ESC rights. Such an attempt would subject economic, social and
cultural rights to a lesser and more constricted protection in comparison to
that extended to other human rights. It would be artificial and impossible to
apply coherently on a case by case basis. While the distinction between types
of duties is a useful analytical tool, in concrete situations, duties appear
intertwined in such a way that makes it difficult to set them apart from each
other. For example, a situation of mass forced evictions carried on by private
parties, where such eviction is due to the lack of adequate protective
legislation and results in homelessness because of a failure to develop
alternative housing options, will amount to violations of duties to respect,
duties to protect, and of duties to fulfill.
Limiting the communications mechanism to some types of duties, excluding
others, would seriously weaken the effectiveness of the mechanism, undermining
the ability of the Committee to determine violations of rights and to recommend
effective remedies.
9.
Regarding
the competence ratione materiae of
the Committee, it is not appropriate to exclude Part I from the Optional
Protocol. The ICCPR Part I is identical and it is not excluded from the
relevant Optional Protocol. Furthermore, the jurisprudence of the Human Rights
Committee indicates that individual communications based only on the right to
self-determination will not be admissible – the precedent will be important for
the ICESCR, given the identity of Part I in both Covenants.
10.
We
believe that it would be mistaken to allow alleged pragmatic considerations to
lead to a lessening of the standard to which States parties should be held
accountable, and hence, to a weakening of the moral and legal anchor points
which such a standard creates. Empirical evidence indicates that such a
technique does not encourage progressive rights implementation where it has
been tried, e.g. with ILO Conventions, and the European Social Charter.
“Reservations”
Article 21
11.
The
NGO Coalition strongly supports the inclusion of Article 21, stipulating no
reservations. The principle of Pacta Sunt
Servanda, a basic principle of international law, establishes that parties
accepting a treaty are bound to honour it. An Optional Protocol is a procedural
instrument that would neither introduce new, nor expand existing, rights and
obligations that States Parties accepted through their ratification of the
Covenant, but would merely serve as a mechanism for encouraging States Parties
to realise existing Covenant obligations. Building on the practice of the Human
Rights Committee, which has clarified that it considers reservations to the
first OP to the ICCPR to be contrary to the object and purpose of the OP[1], the Optional Protocol to the
CEDAW (OP-CEDAW) includes a provision which explicitly prohibits reservations
(Article 17). This development should be reflected in the OP ICESCR.
Standing
Articles 2 and 3
12.
The
NGO Coalition welcomes the provisions of Articles 2 and 3 of the Draft Optional
Protocol as providing in preliminary form a comprehensive view of standing,
embracing (i) individuals; (ii) groups of individuals; and (iii) parties
who as a result of a particular expertise are in a position to challenge
systemic abuses of economic, social and cultural rights, especially where the
violation is spread over a large number of individual victims. The final
adopted version of the Optional Protocol should preserve these three
categories.
13.
The
provisions concerning standing for individual victims and for groups of victims
are in line with existing mechanisms (e.g. Article 2 OP-CEDAW, Art. 14 CERD and
the practice of the Human Rights Committee). A communication may be from a
single individual whose rights under a treaty have been violated, or from a
group of individuals who suffered violations under the same set of facts.
14.
The
NGO Coalition welcomes the provision for “collective communications” in Article
3. It would enable recognized NGO groups to challenge systemic
abuses of economic, social and cultural rights that might involve large numbers
of victims or victims who may not be in a position to make individual
complaints. However, the NGO
Coalition is not in favor of an artificial reliance on the ECOSOC consultative
status as a criterion for standing and considers that this should not be a
requirement for the presentation of complaints under this article. It considers
necessary that the locus standi of
Article 3 be extended to groups and NGOs with a sufficiently demonstrated
interest or expertise in the case.
15.
Furthermore,
the NGO Coalition notes that Article 3 of the English version of the Draft Optional Protocol grants
automatic locus standi to
“international” NGOs with consultative status before the ECOSOC, while the
Spanish version of the document excludes the term “international”, recognising locus standi to all organizations with
ECOSOC status. The version in English is therefore particularly problematic. It
excludes domestic NGOs with ECOSOC status, which may have had a closer relation
with the case from the possibility of lodging communications. In this sense,
the solution is too narrow – it should include a greater range of NGOs. Giving standing only to international NGO
with ECOSOC status is too restrictive and may often mean that other
important local perspectives are lost. As noted, the NGO Coalition considers
necessary that the locus standi of
Article 3 be extended to groups and NGOs with a sufficiently demonstrated
interest or expertise in the case. In
this same line, we consider that the capacity to grant standing to
organizations should not be subject to the willingness of the State concerned,
as set in Article 3.2. It is important that the Committee retains the
discretion to accept claims presented by organizations that comply with
specific substantive criteria.
16.
The NGO Coalition supports amendment to the
provisions of Articles 2 and 3 which would (1) preserve and/or strengthen
possibilities for standing for (i) individuals; (ii) groups of individuals; and
(iii) NGOs which, as a result of a particular expertise are in
a position to challenge systemic abuses of economic, social and cultural
rights, especially where the violation is spread over a large number of
individual victims; while (2) eliminating the requirement that
NGOs with standing be international or have ECOSOC Status and that collective
complainants exhaust domestic remedies.
17.
In addition, we recommend that provision be
made such that, in those cases where, because of the complexity of the facts,
or the collective realm of the communication, contextual information is needed
to clarify the issues and interests at stake, the Committee should allow
information or presentations by other stakeholders and NGOs with relevant
expertise or experience. In this
regard, the NGO Coalition proposes that the following paragraphs should be
added:
“Non-governmental organizations may communicate information to the
Committee when this information relates to any communication filed under
Article 2 or 3 of this protocol.”
Consent
of victim(s) in individual and group communications
18.
Generally,
the victim’s consent is required to submit a communication on his or her
behalf, as implied in the first sentence of Article 2. Evidence of consent may
be offered in the form of an arrangement for legal representation, power of
attorney, or other documentation demonstrating that the representative is authorized
to act on behalf of the victim(s).
19. The
NGO Coalition considers it necessary to broaden the protection provided in
situations where it is difficult or impossible to require the consent of all
the victims. Following the OP-CEDAW, the Optional Protocol should establish an
exception to the consent requirement, allowing the Committee to admit
communications on behalf of victims without their consent if it would be in the
interests of the particular victims(s), and/or the public interest, to do so.
Requirement to name all individuals
20. The
NGO Coalition also considers that in line with the object and purpose of the
Optional Protocol the phrase “individuals and groups of individuals” should be
interpreted to mean not only groups of named individuals but also, in cases
where naming would be impractical or would present a threat to the security of
those named, to groups of incompletely or even un-named individuals adversely
affected by the same set of facts. This
would reflect a similar possibility as provided for in Article 6 of the OP-CEDAW.
Admissibility
- exhaustion of domestic remedies
21. We
welcome the explicit inclusion of the exception from the requirement to exhaust
domestic remedies where “the application of such remedies is unreasonably
prolonged or unlikely to bring effective relief.” Such a principle is now an
accepted principle of international law applicable to regional and
international human rights complaints’ mechanisms. We understand that elements
of Article 3 have been derived from the example of the European Social Charter
collective complaints mechanism. Insofar, however, as Article 4(1) would, in
the current draft, impose a requirement that domestic remedy be exhausted also
in complaints lodged under Article 3, much of the strengths of the European
Social Charter mechanism would be lost, such as its speed and efficacy, as well
as its ability to address issues arising as a result of structural flaws in the
domestic system. We urge that the requirement to exhaust domestic remedy be
dropped, in cases in which a collective complaint will not find a realistic and
timely response at the national level since brought on systemic or structural
grounds. We urge that the requirement to exhaust domestic remedy not apply with
respect to collective complaints.
Admissibility
- Ratione Temporis
22.
The
NGO Coalition considers that the time limit of six months after the exhaustion of
domestic remedies set in subparagraph (a) of Article 4.2 should be
eliminated. There is no reason to
introduce a time limitation to the admissibility ratione temporis of the Optional Protocol that does not exist in
any other human rights treaty of the United Nations, setting, for this
mechanism more restrictive admissibility criteria than that of other
treaties. The time limit seems
particularly restrictive given the potential complexity of claims dealing with
ESC rights and the impact that this requirement may have on access to justice
of victims of violations of these rights.
Confidential Communications
23.
In
addition, following Article 6 of OP-CEDAW, the NGO Coalition considers that a
provision should be made to allow individuals to request to the Committee that
their identity be kept confidential and not be made known to the State Party
concerned. In certain instances, the individual lodging the complaint might be
at risk and this measure would guarantee the physical and psychological
integrity of the complainant and his/her family. This request for
confidentiality however does not represent a violation of the prohibition of anonymity.
Interim
measures
24.
We
commend the inclusion of a provision for the Committee to request a State party
to take interim measures to protect the victim of an alleged violation in those
cases where protection is deemed necessary whilst the matter is subjected to
formal investigation. The capacity to
prescribe interim measures is one of the most important functions of any
judicial or quasi-judicial body adjudicating complaints. For the OP to be fully effective, it must be
able to perform a preventative function: to stop a harm before it can occur, or
to stop an ongoing harm from continuing, or at least mitigating the effects of
that harm. The prescription of interim
measures can serve to prevent irreparable damage before a complaint can be
presented or adjudicated. Interim measures will serve to preserve the rights
claimed by the complainant, complainants or the group at issue in the
complaint, until such time as the dispute can be settled by the Committee, if
related to an existing complaint, or by a competent national body, if not. In
that way the Committee will be able to ensure the integrity and effectiveness
of the decision they might eventually take on the merits. States will also be
on notice when they become party to the Protocol and assume the attendant
obligations that the committee retains the power to indicate interim measures
and that prescription of such measures will constitute an integral part of the
work of the Committee.
25.
However,
the prescribed threshold –“sufficiently substantiated” evidence that the victim
would otherwise suffer “irreparable damage” seems too restrictive. A
communication concerning any “sufficiently substantiated” case where grave or
serious harm to a victim or victims could result from on-going or unaddressed
violations, would be a preferable threshold in the interests of rights
protection.
26.
The
draft as it stands takes a step back from the trends of the most recently
adopted human rights treaties that adjudicate complaints: the OP-CEDAW (Article
5) and the Convention for the
Protection of All Persons from Enforced Disappearance (Arts.
30-31). Both of these instruments
provide explicitly that the relevant Committee has the power to propose interim
measures for urgent consideration of a State party. This element of urgency is
absent from the text of the draft Optional Protocol to the ICESCR. The key point of interim measures is that
they should be considered and acted on with urgency. A mass forced eviction for example, should not need to await
lengthy deliberative processes before remedial action can be taken.
27.
Another
element missing from this text that is contained in OP-CEDAW and the Convention
on Enforced Disappearance is a provision indicating that interim/ precautionary
measures do not imply a determination on either admissibility or the merits of
a case. Such a provision is essential,
as it enables interim measures to be issued expeditiously. Additionally, both of the other texts speak
of irreparable damage to the victim or victims of the alleged violation. The addition of “victims” should clearly be
retained for cases where more than one victim is the subject of the request.
28.
The
provision should revive an element from the 1997 Committee draft, namely that
“The State party concerned shall take all necessary steps to comply with a
request by the Committee for interim measures.” For interim measures to be
effective, they must be, and must be seen to be, binding on the states to which
they are addressed. The principle that precautionary measures are of binding
quality has been well recognized both by international judicial and
quasi-judicial human rights bodies.
Interim measures
where domestic remedies not exhausted
29.
In
order to act as an effective mechanism to prevent imminent human rights
violations, the Committee must have the power to make interim orders without
the need for the alleged victims to have exhausted domestic remedies. We recommend clarification of this power by
the addition of a sub-clause under Article 5.
Action in
relation to imminent violations
30.
The principle of harm minimization set
out above in recommendations regarding the Committee’s powers to waive the
requirement for domestic remedies to be exhausted before admitting a
communication, and its powers to issue requests for interim measures in serious
cases, could be extended by the addition of a principle of harm prevention, to
operate in cases where there is “sufficiently substantiated” apprehension of a
serious violation or violations. Enabling the Committee to issue requests for interim
measures in such cases, would give it a pro-active role in rights protection.
31.
The Inter-American System offers an
important and successful example on this regard, granting the Inter-American
Commission and the Inter-American Court extensive authority to request
precautionary or provisional measures to prevent irreparable damage to people, without these being linked necessarily to
preexisting cases. This capacity has
allowed these bodies to prevent irreparable damage in situations related to
forced evictions, right to education, labor rights and right to health, among
others. This has also allowed States to address situations in such an effective
manner as to render unnecessary the actual presentation of a communication.
This is an important advantage from the point of view of procedural economy and
effectiveness of the system. Article 30 of the International Convention for the
Protection of All Persons from Enforced Disappearance adopts a similar
preventive approach as it grants the corresponding Committee the authority to request the State Parties to take the necessary measures to locate
and protect the person concerned when certain conditions are met, without
linking this faculty to an existing communication
Friendly
settlement
33. The
success of a friendly settlement mechanism depends on its ability to protect
the rights of victims whilst retaining the good will of the States parties
towards the international system. A friendly settlement procedure must
therefore not close consideration of the communication until the agreement
reached in a friendly settlement is fully implemented.
34. The
Committee will need to assess whether States parties have promptly and
comprehensively honoured undertakings made pursuant to a friendly
settlement. A sub-paragraph, under
Article 11 to this effect would be desirable.
35. The
prompt implementation of any friendly settlement and its monitoring by the
Committee is essential, especially in ensuring that the friendly settlement is
consistent with the objects and purpose of the Covenant and that the mechanism is
not used to delay a case indefinitely. Based on the experiences of the
Inter-American Commission on Human Rights, the Former European Commission and
the European Court of Human Rights, one of the main concerns with regard to a
friendly settlement mechanism has been the need to have strict time frames for
the implementation of a friendly settlement and an adequate mechanism for the
supervision of its enforcement. Hence, to ensure that the settlement reached is
in accordance with the object and purpose of the ICESCR and is properly
implemented, the terms of a friendly settlement should be subject to review and
approval by the Committee, and must also be subject to follow-up procedures in
order to monitor its implementation.
International
cooperation and assistance
36.
The
NGO Coalition welcomes Article 13 of the draft Optional Protocol which would
enable the Committee to convey to UN specialized agencies, funds, programmes
and other competent bodies, its view on communications or inquiries which
indicate a need of States parties for technical advice or assistance. This
reflects the content of Article 22 of the ICESCR.
37.
It
will also be valuable to make explicit the need for the Committee to take into
account the resources available to a State party through international
cooperation and assistance when it is assessing alleged ICSECR violations under
Article 8 of the draft Optional Protocol.
38.
From
the text of Article 2.1 of the ICESCR it is clear that international assistance
and cooperation forms a component of states’ obligations under the Covenant.
Consequently, the availability of international assistance is relevant to
determining whether lack of fulfillment of the rights in the Covenant can be
considered a violation. Article 8.4 of the first draft Optional Protocol should
therefore be amended to reflect the place of international assistance and
cooperation in Article 2.1 of the ICESCR.
The article currently states: "4. When examining communications
under the present Protocol concerning article 2, paragraph 1 of the Covenant,
the Committee will assess the reasonableness of the steps taken by the State Party, 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." A helpful revision would be to include the construction
"including those available through international assistance and
cooperation" after the words "to the maximum of its available
resources".
Consideration of the
merits
39.
The
NGO Coalition considers of the essence to clarify that the requirement to give
“due consideration to relevant decisions and recommendations of other United
Nations mechanisms as well as of bodies belonging to regional human rights
systems” established in Article 8.3 shall not (i) impose an additional
admissibility requirement for any case, or (ii) set mandatory precedents for
the Committee to take into account in the consideration of the merits of a
case.
“Reasonableness”
40.
Article
8.4 of the Draft Optional Protocol gives direction as to the standard of review
to be employed by the Committee in cases involving obligations under Article
2(1). (“When examining communications under the present Protocol concerning
Article 2, paragraph 1 of the Covenant, the Committee will assess the
reasonableness of the steps taken by
the State Party, 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”). The NGO Coalition supports the
proposal to identify the standard to be employed as that of “reasonableness”.”,
but suggests, for clarification, the addition of “effectiveness” – i.e. “The
Committee will assess the reasonableness
and effectiveness of the steps …).
41. The standard of
“reasonableness” is consistent with both international and domestic standards
of review in the field of ESC rights.
As a general principle of international law, a norm cannot require the
State to undertake acts which are unreasonable. Article 2.1 of the ICESCR requires the State to undertake steps
for the full realization of ESC rights “by
all appropriate means”. Article 4 of the ICESCR requires that limitations to
ESC rights be “compatible with the nature of these rights and solely for the
purpose of promoting the general welfare in a democratic society”. The principle of reasonable limitations of
rights arising from limited resources and competing needs related to the
promotion of general welfare is thus a fundamental principle within the
ICESCR. Including reference to the
reasonableness standard in the Optional Protocol is therefore, in the view of
the NGO Coalition, consistent with the substantive provisions of the ICESCR and
norms of international law. It is also
consistent with emerging domestic jurisprudence in this area.
42. We
propose the addition of “effectiveness”, however, to clarify that the
reasonableness standard applicable to the ICESCR must include consideration not
only of the limitations on the state in relation to available resources and
competing needs, and the integrity of the decision-making process, but also
whether the measures adopted by the State Party are in fact effective in
realizing Covenant rights. The additional reference to consideration of the
“effectiveness” is consistent with the requirement of “effective” measures in
the Disability Convention, the Migrant Workers’ Convention, the Convention against
Torture, the Convention on the Rights of the Child, ICERD, and with the
requirement of effective remedies and effective protection from discrimination
under the ICCPR.
Implementation and follow-Up
43.
The
NGO Coalition considers of extreme importance that the Optional Protocol
emphasizes the obligations of State parties to implement the views of the
Committee, all recommendations on the remedies, as well as the obligations to
submit to the Committee, make public and disseminate information related to a
case, except in circumstances where this would give rise to other human rights
violations. While we recognize the appropriateness of having the majority of
issues related to implementation and follow-up included in the rules of
procedure that will be created according to Article 17, we recommend that an
explicit recognition of these obligations be made in the Preamble of the
Optional Protocol.
Participation of the victims and/or his/her representative
44.
The
NGO Coalition considers that as a matter of principle the participation of the
victims and/or his/her representatives should be guaranteed during all instances
of the different procedures established in the Optional Protocol.
45.
Nowadays,
there is a preponderant international tendency towards broadening the scenarios
for a victim’s participation in international mechanisms for the protection of
human rights, recognizing them as the interested parties. In this sense, for
example, the 2002 reform to the rules of procedure of the Inter-American
Commission on Human Rights and the Inter-American Court on Human Rights
provides for the participation of victims or their representatives in every
stage in which their interests could be compromised (Article 23 of the rules of
procedure, of the Commission and Article 44 of the rules of procedure of the
Court).
46.
Particularly,
in relation to the Inquiry procedure established in Article 10 of the Optional
Protocol, the process will increase its effectiveness in a considerable manner
if a wide participation of civil society were ensured, such as the one granted
to interested parties during the process of periodic reports.
[1] “…because
the object and purpose of the first Optional Protocol is to allow the rights
obligatory for a State under the Covenant to be tested before the Committee, a
reservation that seeks to preclude this would be contrary to the object and
purpose of the first Optional Protocol”, Human Rights Committee, General
Comment No. 24: Issues relating to reservations made upon ratification or
accession to the Covenant or the Optional Protocols thereto, or in relation to
declarations under article 41 of the Covenant, CCPR/C/21/Rev.1/Add.6, para
13.