ESCR PROTOCOL NOW!
Campaign for
international justice for economic, social and cultural rights
ADVOCACY KIT
Compiled by
The NGO Coalition for
an Optional Protocol to the
International Covenant on
Economic, Social and Cultural Rights
www.escrprotocolnow.org
For activities targeting the
Open-Ended Working Group
to consider options for an OP-ICESCR
(February 2006) and
the
Commission on Human Rights 2006
Introduction
This is an Advocacy Kit compiled by the
NGO Coalition for an OP-ICESCR for groups interested in supporting the campaign
for an international complaints mechanism for victims of economic, social and
cultural rights.
It provides information on the process,
as well as tools for national campaigning and lobbying. This document is
organised in the following different sections so you can pick and choose the
parts that are most useful to you:
Introduction....................................................................................................................... 2
Lobby Guide..................................................................................................................... 4
Feedback On Your Lobbying.............................................................................................. 6
What Is The NGO Coalition And Who Is Involved
In The Campaign?....................................... 8
What Are We Campaigning For? (short version)................................................................. 10
What Are We Campaigning For? (longer version)................................................................ 11
Political Support For The OP-ICESCR............................................................................... 20
Ideas For Getting Involved – What Can You Do?................................................................. 21
Preparing For The Working Group..................................................................................... 25
Information For Those Able To Attend The
Working Group In Geneva.................................... 27
Information For Those Working From Home........................................................................ 29
How To Lobby Your Government....................................................................................... 33
Media & Other Activities................................................................................................... 36
Background on the ICESCR............................................................................................. 39
What is an "Optional Protocol"?........................................................................................ 42
Benefits Of An OP-ICESCR (short version)......................................................................... 44
Benefits Of An OP-ICESCR (longer version)....................................................................... 45
Key Issues Regarding The OP-ICESCR............................................................................. 48
Questions And Answers................................................................................................... 55
Toolkit On ESCR Justiciability.......................................................................................... 60
Toolkit On Government Obligations.................................................................................... 62
Main Developments In Relation To The
OP-ICESCR............................................................ 66
Historical Milestones........................................................................................................ 72
Reference Documents...................................................................................................... 75
Links To Organisations Involved in the
Campaign................................................................ 78
Your comments on this Advocacy Kit are
very welcome – we’d love to hear from you about how you use it, which parts are
most helpful, and any ideas for other aspects that could be addressed. Please email
op_coalition@yahoo.de
with your comments.
Lobby Guide
What
We are campaigning to provide victims
of violations of economic, social and cultural rights with access to
international justice.
Currently, if you have been tortured or
if your right to freedom of expression is violated, you can complain to the
United Nations. But if you have been forcibly evicted, or if you are unable to
access healthcare services, you don’t have the same opportunity. It should not
be that way!
The way forward is the development of
what is called an Optional Protocol to the International Covenant on Economic,
Social and Cultural Rights (OP-ICESCR). This Optional Protocol will establish a
complaints mechanism allowing you to present your case to the United Nations.
How
The members of the United Nations have
come together, in the form of a working-group, to discuss the possibility of
elaborating this Optional Protocol. Victims of economic, social and cultural
rights violations have been waiting for this opportunity for a long time.
We are now at a crucial stage and
governments will decide in March 2006 whether or not we will have this Optional
Protocol. The voice of civil society is vital in convincing all governments to
support this process.
When
Time is short and work has already
commenced. But we urgently need more voices and your active support. It is
important to be lobbying your government now and in the coming months in the
lead up to two major events.
First, the UN Working-Group will be meeting
from 6 to
If there is not enough support for this
at the Working Group and the Commission on Human Rights 2006, there will be no
Optional Protocol in the foreseeable future and voices of victims of economic,
social and cultural rights violations will be silenced.
Who
The campaign for the adoption of this
Optional Protocol is coordinated by the NGO Coalition for an Optional Protocol
to the International Covenant on Economic, Social and Cultural Rights.
The Coalition brings together national,
regional and international NGOs, individuals, social movements and community
based organisations all committed to make the Optional Protocol a reality. Because we need to join forces on this issue,
the Coalition makes sure that we develop a common strategy and position and
provides information about the process.
Because you can make a difference in
the way your government thinks about this Optional Protocol, we invite you to
join the Coalition and share with us your successes, feedback from your
lobbying with governments and any information that could be useful to others
campaigning in other countries.
To join the Coalition, go to our website:
www.op-icescr-coalition.org.
Why
An OP-ICESCR is important because it
will provide victims of economic, social and cultural rights violations who
can’t be heard before their national courts an avenue to get redress. As such,
it will redress the current imbalance in the protection of different human
rights, which marginalises economic, social and cultural rights.
Having an international complaint
mechanism will also help develop the content of ESC rights and related States’
obligations, as well as give guidance to national courts.
In order to achieve these objectives,
the mechanism adopted must be useful and the Coalition has established minimum
criteria (further information about these can be found in sections of this Advocacy
Kit).
In our view, anything short of a
comprehensive OP-ICESCR would have huge impacts on groups’ ability to use those
rights to seek better social justice.
Feedback On Your Lobbying
Please complete this form and return to
the NGO Coalition, either via email to op_coalition@yahoo.de, or
you can complete online at
www.op-icescr-coalition.org.
|
Name |
|
|
Organisation |
|
|
Contact Details |
|
|
What is your Government’s position on
the OP-ICESCR |
|
|
Will your Government participate in
the Open-Ended Working Group 2007? |
|
|
If so, please provide information
about your Government’s Delegation (who, how long are they staying, any
particular background information on individuals we should be aware of) |
|
|
Who you contacted – Name, Position
and Department |
|
|
Any other relevant information? |
|
What Is The NGO Coalition And Who
Is Involved In The Campaign?
The NGO
Coalition for an OP-ICESCR coordinates the campaign for the adoption of an
OP-ICESCR.
The NGO
Coalition for an OP-ICESCR brings together individuals and organisations from
around the world who support the development of an OP-ICESCR. Our members
including international NGOs, regional networks, grassroots activists,
community based organizations, and individuals, all of whom have a common goal
to promote an OP-ICESCR. Together we join
forces to convince governments that the time has come to provide victims of
violations of economic, social and cultural rights with access to international
justice.
Aims And Activities
The main
motivation behind the creation of the Coalition was the need to speak with one
voice and to show that there is broad civil society support for the OP-ICESCR.
The primary objective of the Coalition
is therefore to advocate for the adoption of an effective OP-ICESCR and to
mobilise forces around this issue at the national, regional and international
levels.
As such, the Coalition undertakes the
following activities:
- Developing and providing information and materials
which will facilitate the advocacy of individuals and organisations
working for the adoption of an OP-ICESCR
- Mobilising national, regional and international
organisations and individuals to engage in public education and
advocacy for an OP-ICESCR
- Facilitating communication between interested parties
- Engaging in public education and direct advocacy as
appropriate
- Consulting with relevant individuals and organizations
about critical issues in the development of an effective OP
- Developing strategies and seeking funding as
appropriate to secure the development and adoption of an effective OP to
the ICESCR
- Intervening in relevant for a to promote the adoption
of an OP-ICESCR
Principles Guiding The Work Of The Coalition
The Coalition has identified five key
elements for an effective OP. Each is a minimum requirement for the Optional
Protocol that should be promoted by all NGOs wishing to contribute to the
process of making the OP to the ICESCR a meaningful human rights instrument. These
minimums are described on page 6 of this Advocacy Kit.
Commitments From Members
Members
of the Coalition commit to:
- Sharing
information about the OP-ICESCR campaign & their activities
- Sharing resources
which support the principles of the Coalition
- Sharing
strategies for lobbying
Governance Of The Coalition
The Coalition is directed by a
volunteer Steering Committee comprised of regional and international
organisations, as well as individuals. The Steering Committee is an
operational group of individuals and organisations which coordinates the work
of the coalition.
The current Steering Committee
comprises of representatives from the following organisations:
- Centre on Housing Rights and Evictions (COHRE),
- FoodFirst Information and Action Network (FIAN),
- International Commission of Jurists (ICJ),
- International Women’s Rights Action Watch Asia-Pacific
(IWRAW Asia Pacific),
- Inter-American Platform of Human Rights, Democracy and
Development (PIDHDD),
Bruce Porter and Magdalena Sepulveda are also members of the Steering Committee in an individual
capacity.
Membership of the Steering
Committee will be reviewed after the 2006 Working Group.
How To Join The Coalition?
Organisations
and individuals can become members of the Coalition. To join the Coalition, you
will have to agree upon a set of membership principles and return the
membership form to the following address:
op_coalition@yahoo.de.
The membership form and principles are
available on the Coalition website:
www.op-icescr-coalition.org.
Communication
The members of the Coalition
communicate through an e-mail list, where information, strategies, papers, etc.
are shared. To join the Coalition email list please visit escrprotocolnow-subscribe@yahoogroups.com.
What Are We Campaigning For? (short version)
Members of the Coalition have
identified five key elements for an effective OP. Each is a minimum requirement for the Optional
Protocol that should be promoted by all NGOs wishing to contribute to the
process of making the OP to the ICESCR a meaningful human rights
instrument.
ELEMENT
ONE: The OP should contain at least two procedures: (1) a Communication
Procedure and (2) an Inquiry Procedure. The
NGO Coalition also supports the inclusion of other important procedural
elements, such an early warning/emergency procedures mechanism, interim
measures in cases of immediate or irreparable harm to complainants, and
effective remedies and follow-up measures.
An inquiries procedure, including fact-finding missions to the State
Party concerned, would enable the CESCR Committee to launch, at its own
initiative, investigations into grave and/or systematic violations of the rights
contained in the Covenant.
ELEMENT TWO: The Procedures established under the OP to the ICESCR
should be available to victims of violations of ANY substantive right enshrined
in the Covenant. The procedures under the OP to the ICESCR should extend to ALL
the rights set forth in the Covenant. The
OP to the ICESCR must be comprehensive in its coverage and should include all
the rights contained in the ICESCR, including the right to
self-determination.
ELEMENT
THREE: The violations to be reviewed under the Procedures established under the
OP to the ICESCR should be linked to all levels of state obligations. This should include the obligations to
respect, protect, and fulfil economic, social and cultural rights. It should also include all components of a
right, and not simply the “core” rights or “minimum rights”.
ELEMENT FOUR: Standing should extend to individuals, groups and
organisations. The
capacity to submit complaints under an OP should extend to individuals, groups
of individuals, and organisations (including NGOs and trade unions). The OP
should enable complaints to be submitted by or on behalf of individuals, groups
of individuals and organisations.
ELEMENT
FIVE: No reservations should be allowed under the Optional Protocol to the
ICESCR.
In addition to these five core elements, the Coalition also believes that other issues are important and should continue to be discussed during the process of advocating for an OP, including the capacity to address and acknowledge the role of international cooperation in the realisation of ESCR and the responsibilities of non-state actors, in particular transnational corporations. Once discussions around an OP progress to the drafting of the mechanism, the NGO Coalition will advocate for progressive approaches towards other more procedural elements such as the exhaustion of local remedies rule and the protection of complainants against reprisals. What Are We Campaigning For? (longer version)
Members
of the Coalition have identified five key elements for an effective OP. Each is
a minimum requirement for the Optional Protocol that should be promoted by all
NGOs wishing to contribute to the process of making the OP to the ICESCR a
meaningful human rights instrument.
ELEMENT ONE: Communication & Inquiry Procedures
The OP should contain
at least two procedures: (1) a Communication Procedure and (2) an Inquiry
Procedure.
Why a communications
procedure?
The communications procedure
would enable individuals and groups of individuals to file complaints before
the Committee. The individual communications would refer to specific violations
of the rights guaranteed in the International Covenant on Economic, Social and
Cultural Rights. It would also allow them to seek redress for violations of
ESCR that generally go unnoticed at the national level.
Why an Inquiry
Procedure?
This procedure would enable the Committee
to launch, on its own initiative, on the basis of reliable information,
inquiries into grave or systematic violations of rights enshrined in the
ICESCR.
*Grave
violations would constitute severe abuse.
For example violations of economic, social and cultural rights that would have
negative impact on of the right to life, physical and mental integrity, and
security of a person. E.g.: forced evictions by military forces that have
caused injuries and deaths of various members of an indigenous community
* Systematic
would refer to the scale or prevalence of violations, or to existence of scheme
or policy directing violations. Violations not amounting to the level of
severity implied by “grave” may still be focus of inquiry if there is pattern
of violations or abuses are committed pursuant to scheme or policy. E.g. forced
sterilization of Roma women in public hospitals.
An
inquiry procedure would reinforce an Optional Protocol’s complaints procedure as
it would: (i) Open an avenue to address situations where individual/group
communications could not adequately reflect the gravity or the systemic nature
of violations of Covenant provisions;
(ii) Allow grave and/or systematic Covenant
violations to be investigated where individuals or groups were unable to
utilise the complaint's mechanism for reasons including fear of reprisals; and
(iii) Enable a more-timely response
to grave and/or systematic violations of the provisions of the Covenant, and to continuing violations
in particular.[1]
Why
a Follow-up Procedure
This
procedure would enable the Committee to follow-up on the implementation of its
decisions. Under a follow-up procedure, the Committee would be empowered to
intervene with the State Party, beyond the regular reporting process, to discuss
problems that could arise regarding the implementation of a particular decision.
A
follow-up procedure would reinforce an Optional Protocol’s complaints
procedure as it would: (i) Open an avenue to address problems States might face
in implementing a particular decision; (ii) Provide guidance and support to
those States in order to give full effect to a Committee’s decision; (iii)
Guarantee that the Committee’s decisions are actually implemented.
Other
Elements
The NGO Coalition also
supports the inclusion of other important procedural elements, such an early
warning/emergency procedures mechanism, interim measures in cases of immediate
or irreparable harm to complainants, and effective remedies and follow-up
measures.
Interim Measures
Many allegations of violations of Covenant rights involve
measures which may irreparably set back the enjoyment of Covenant rights or do
irreparable harm to groups or individuals. The NGO Coalition believes that if
the alleged violation is of extreme gravity and urgency or would constitute a
serious retrogressive measure that would be difficult to remedy, such that
immediate action is required in order to avoid irreparable harm to victims and
potential victims or to the enjoyment of Covenant rights, it should be possible
to order interim measures. Therefore,
the OP should include, as it is the case in the OP-CEDAW, a specific provision
allowing for interim measures which will enable the CESCR to require a State
party to take measures “to avoid irreparable damage to the victim of the
alleged violation”.
ELEMENT TWO: Comprehensive Scope
The
Procedures established under the OP to the ICESCR should be available to
victims of violations of ANY substantive right enshrined in the Covenant. The
procedures under the OP to the ICESCR should extend to ALL the rights set forth
in the Covenant.
The OP to the
ICESCR must be comprehensive in its coverage and should include all the rights
contained in the ICESCR, including the right to self-determination.
The
Optional Protocol does not create new substantive rights. It creates
complimentary procedures for addressing and redressing violations of rights
established in the Covenant. For this reason, all procedures to be included
under the Covenant should be available to the wide range of victims of ESCR
violations. From this point of view, it would be inadequate to establish
procedures by which victims of violations of the right to health can seek
redress while victims of violations the right to food do not have access to
justice.
The 1993 Vienna World Conference on Human Rights was unequivocal
in confirming the universality, interdependence, indivisibility and
interrelatedness of civil, cultural, economic, political and social
rights. Moreover, all existing mechanisms
available through the Optional Protocols to major human rights Conventions are
linked to ALL the rights embodied in the main treaties. Failure to adopt a
similar approach in drafting the OP-ICESCR
would make this mechanism less effective and thus, it would weaken its
potential.
ELEMENT THREE: All Levels of Obligations
The violations to be
reviewed under the procedures established under the OP-ICESCR should be linked
to all levels of state obligations.
This should include
the obligations to respect, protect, and fulfil economic, social and cultural
rights. It should also include all
components of a right, and not simply the “core” rights or “minimum rights”.
One of the main principles informing the CESCR is the principle of
State Obligation. In this connection,
it is important to emphasize that the views and recommendations of the
Committee when considering communications and inquiries under the OP-ICESCR
would be aimed at strengthening the domestic implementation of the Covenant.
For this reason, the Optional Protocol to the ICESCR must address positive and negative State obligations
associated with the realization of all rights enshrined in the ICESCR
* The obligation to respect requires States parties to
refrain from interfering with the enjoyment of Covenant enshrined economic, social and cultural rights. That is,
States parties must not act in a way which violates an economic, social or
cultural right, nor infringes on an individual’s freedom to access these
rights. Within this
context, states must “respect the freedom of the individuals to take the
necessary actions and use the necessary resources – alone or in association
with others.”[2]
* The obligation to protect requires States parties to
prevent the violation of ICESCR rights
by third parties. States parties must take “the measures necessary to prevent other individuals
or groups from violating the integrity, freedom of action, or other human
rights of the individual – including the infringement of his material
resources.”[3]
* The obligation to fulfill encompasses the state obligations to facilitate the access to and/or to provide for the full realisation of
economic, social and cultural rights. The obligation to facilitate requires States parties to pro-actively engage in
activities that strengthen access to and the utilisation of resources and means
to ensure the realisation of Covenant
rights. The obligation provide requires
States to take measures necessary to ensure that each person within its
jurisdiction may obtain basic economic, social and cultural rights satisfaction
whenever they, for reasons beyond their control, are unable to realise these
rights through the means at their disposal.[4]
State
obligations under the Optional Protocol to the ICESCR must encompass both negative and positive obligations,
thereby reinforcing the universality interrelatedness and indivisibility of all
human rights. Such an approach would
also serve as a reminder to the international community, through the OP-ICESCR,
of the importance it attaches to economic, social and cultural rights issues
and the seriousness with which it now responds to violations.
ELEMENT FOUR: Standing For Individuals, Groups and
Organisations.
The capacity to
submit complaints under an OP should extend to individuals, groups of
individuals, and organisations (including NGOs and trade unions).
The OP should also enable
complaints to be submitted by or on behalf of individuals, groups of
individuals and organisations.
The NGO Coalition believes that due to the nature of
violations of economic, social and cultural rights, and the scope of impact that
these violations can have, the capacity to submit communications under an OP
should remain as broad as possible.
At
a minimum, the following should have standing:
- Individuals and groups of individuals[5]
who have been victims of violations of Covenant
rights by State parties;
- Representatives of individuals or groups of individuals
empowered to initiate complaints on
behalf of individual and collective victims.
Why the need for
groups of individuals?
Limiting standing,
and thus the ability to initiate complaints under an Optional Protocol, to
individuals would be to deprive all groups and legal entities including trade
unions, educative associations, social groups and cultural minorities from the
benefits associated with this mechanism.
Both the Covenant
on the Elimination of Racial Discrimination and the Covenant on the Elimination of All Forms of Discrimination Against
Women contain the ability for communications to be brought by both
individuals and groups of individuals.
Victims of ESCR violations are often extremely poor and would thus often
not be in a position to make use of the international procedure.
The role of NGOs in
the Communications procedure
NGOs
should be able to lodge communications on
behalf of individuals and groups of individuals.
The
importance of expressly acknowledging the competence of representatives,
particularly non-governmental organisations and national human rights
institutions, to launch complaints on behalf of individual and groups victims
of ICESCR violations cannot be
underestimated. Under existing instruments, complaints on behalf of individual and group victims have either been specifically
included[6]
or such representative standing has been provided through adjudicative
interpretation.[7]
Providing
standing to individuals and organisations to initiate communications on behalf of individual and group victims
of rights violations follows the precedents of Article 2 of the Optional
Protocol to the Convention on the
Elimination of all Forms of Discrimination against Women, Article 22 of the
Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, Article 77 of the International Convention on the
Protection of the Rights of All Migrant Workers and Members of their Families,
and the practice of the United Nations Human Rights Committee.
The
significance of allocating standing to such representatives is rooted in the
fact that these types of communications play an essential role in initiating
international complaint's procedures, particularly where victims face the risk
of ill-treatment or other retaliation for directly engaging in the process.[8]
What would be the
role of NGOs in the Inquiry Procedure?
The Committee should be able to consider
information from credible sources, including information provided by NGOs, when
initiating an inquiry.
ELEMENT FIVE: No Reservations
No reservations
should be allowed under the OP-ICESCR.
Precluding
reservations to the Optional Protocol[9]
to the ICESCR would represent a significant commitment by States parties which
ratify the Protocol, to uphold the integrity of internationally recognised
economic, social and cultural rights.
Excluding the use of reservations would be appropriate as:
(i) The raison
d’être of an Optional Protocol would be to
provide to people an international procedure to obtain protection for the
enjoyment of their economic, social and cultural rights as enshrined in the
ICESCR. As a tool to both complement and
strengthen the Covenant, to allow
State party reservations to an Optional Protocol would be to undermine its
potential as a tool for the full realisation of economic, social and cultural
rights;
(ii) An Optional Protocol would by its very
nature be optional and as such, reservations that curtailed its applicability
would be unnecessary;
(iii) An Optional Protocol would be a
procedural instrument as it would neither introduce new nor expand present
economic, social and cultural rights obligations that States parties accepted
through their ratification of the Covenant. An Optional Protocol would thus merely
serve as a means through which States parties would be encouraged to realise
existing ICESCR obligations.
(iv) An effective Optional Protocol must
recognise the indivisible and interdependent relationship amongst all Covenant rights. To allow States parties to individually
select the ICESCR rights subject to
an Optional Protocol strike at the core this relationship and the instruments
ability to protect and promote Covenant
rights. Such a selective approach would
open the door to arguments as to the hierarchy of and inequality between
economic, social and cultural rights, thereby encroaching upon the
universality, interdependence, indivisibility and interrelatedness of all human
rights.[10]
Further, permitting the selection of economic, social and cultural rights
subject to the Optional Protocol mechanisms would risk that some States parties
would enhance their international prestige, through ratification, while
restricting the instrument’s substantive application.
It is important to bear in mind the comments made
by the Human Rights Committee on the issue of reservations made upon
ratification or accession to the ICCPR
or its Optional Protocols, in its General Comment Number 24[11],
where it addressed the issue of whether reservations are permissible under the
first Optional Protocol to the ICCPR,
and if so, whether such reservations are contrary to the object and purpose of
the Covenant or of the first Optional Protocol itself.
In this regard, the Committee stated:
“It is clear that the first Optional
Protocol is itself an international treaty, distinct from the Covenant but
closely related to it. Its object and purpose is to recognize the competence of
the Committee to receive and consider communications from individuals who claim
to be victims of a violation by a State party of any of the rights in the
Covenant. States accept the substantive rights of individuals by reference to
the Covenant, and not the first Optional Protocol. The function of the first
Optional Protocol is to allow claims in respect of those rights to be tested
before the Committee. Accordingly, a
reservation to an obligation of a State to respect and ensure a right contained
in the Covenant, made under the first Optional Protocol when it has not
previously been made in respect of the same rights under the Covenant, does not
affect the State's duty to comply with its substantive
obligation. A reservation cannot be made to the Covenant through the vehicle of
the Optional Protocol but such a reservation would operate to ensure that the
State's compliance with that obligation may not be tested by the Committee
under the first Optional Protocol. And 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, even if not of the Covenant. A reservation to a substantive
obligation made for the first time under the first Optional Protocol would seem
to reflect an intention by the State concerned to prevent the Committee from
expressing its views relating to a particular article of the Covenant in an
individual case.
Further, the Committee stated that “reservations relating to the required
procedures under the first Optional Protocol would not be compatible with its
object and purpose”.
Accepting reservations to the Optional
Protocol to the ICESCR would depart
from existing practice where neither the OP to CEDAW nor the OP to ICCPR
accept reservations.
Further Elements
In addition to these five core elements, the Coalition also believes that other issues are important and should continue to be discussed during the process of advocating for an OP, including the capacity to address and acknowledge the role of international cooperation in the realisation of ESCR and the responsibilities of non-state actors, in particular transnational corporations.
Once discussions around an OP progress to the drafting of the mechanism, the NGO Coalition will advocate for progressive approaches towards other more procedural elements, such as the exhaustion of local remedies rule, and the protection of complainants against reprisals. Political Support For The OP-ICESCR
Over
the last three years, political support for the OP-ICESCR has gained momentum
and an increasing number of countries are supporting the elaboration of this
instrument. However, strong opponents to the whole process remain, while many
countries, perhaps because they still have a certain number of concerns, have
not developed a final position on this issue.
Opposition
to the OP-ICESCR comes from various regions. The
The
good news is that Latin American countries have come together, as a regional
group, to support an OP-ICESCR. The main advocates for the Optional Protocol in
the region are
African
countries, as a regional group, are also supporting the development of an
OP-ICESCR which would include all the Covenant rights and all levels of States
obligations. The support of African countries is conditional on the inclusion
of international cooperation in the OP-ICESCR.
The
European Union (EU) comes divided in relation to the OP-ICESCR. Countries like
At
the European level, the
If you are interested in getting more details about a specific country position on the OP-ICESCR, you can contact us at: op_coalition@yahoo.de
Ideas For Getting Involved – What Can You
Do?
What you can do to influence the position of your
country in the right direction? You can:
·
Co-ordinate efforts and come together at the national and/or regional
levels to organise and share work (i.e. build a national coalition/platform for
the OP-ICESCR)
·
Write a letter to your government with your demands for the OP (you can
use the minimum elements of the international NGO Coalition which you can find on
page 6 of this Advocacy Kit or in the Membership Principles – this document is
available on our website at
www.op-icescr-coalition.org)
·
Try to get this letter signed by as many national civil society actors
as possible (including trade unions and social movements)
·
If possible, follow-up on the letter by organising a meeting with people
in charge of the issue in the relevant ministries. (an inter-ministerial approach may be
required – for example it may be the Ministry of Foreign Affairs, Ministry of
Justice, Ministry for Culture, Ministry of Social Services, and/or the Ministry
of Interior, or each of these equivalents or others in your country that will
be responsible for this issue.)
·
Parallel to that, and whenever possible, national public opinion should
be mobilised and the issue brought to the media attention. For example, you can stimulate changes in
public opinion through activities such as public seminars, training workshops,
etc. and engaging media (for example, writing letters to editors, issuing media
releases on upcoming events, writing opinion editorial pieces in the local
media drawing on local examples).
We can help you preparing your advocacy efforts and
answer your strategic questions. We can inform you on regional initiatives and
on international events. In return, if we want all the national efforts to fill
in the global campaign for the OP, we will need your input and feedback on your
national activities and achievements.
This will enable us to attend the next big decisive
negotiations rounds as a representative and broad coalition of civil society
organizations. And this is what the OP needs the most: that states see that
their citizens care about the future of economic, social and cultural rights.
Preparing For The Working Group
Right now, there
is an opportunity for you and your organization to make a difference to the way
in which economic, social and cultural rights are thought about both within
your own community and internationally.
Why Is The February 2006 Working Group So Important?
From
6-17 February 2006 governments, civil society representatives and experts will
be meeting in
The
meeting of the “Open Ended Working Group” will report to the Commission on
Human Rights in 2006, and its report will reflect the discussions regarding
future actions on the development of the Optional Protocol to the ICESCR. It is hoped that the Report of this Working Group will show
that States feel strongly that it is time to start drafting an Optional
Protocol.
The
meeting is a vital point in the campaign for the Optional Protocol to the
ICESCR. If the meeting fails to attract
significant support for the continuation of the Working Group and the prompt
development of a legal text, the mandate of the Working Group will not be
renewed and the momentum that has been developing over the past few years will
be lost.
To
enable the Coalition to be as effective as possible during the meeting of the
Open-Ended Working Group we need to:
- ensure that the
Coalition knows the position of as many governments as possible
- encourage
supportive governments to participate in the Open-Ended Working Group
- lobby governments
at the national level to guarantee support for the Optional Protocol to
the ICESCR.
What Is Your Government Saying And What Can You Do?
While
developments at the United Nations level might seem very far away and abstract,
you have a crucial role to play, in your respective countries, to change the
way your governments think about economic, social and cultural rights and about
an Optional Protocol to the ICESCR.
Your
actions at the national level, with your respective governments, are crucial to
guarantee support for the OP-ICESCR. Pressure put on your government through
letter writing, campaigning or official meetings, remain fundamental elements
to bring about changes in your governments’ position on an Optional Protocol to
the ICESCR.
To
facilitate the Coalition learning more about government attitudes to the
Optional Protocol to the ICESCR - including whether or not they intend to
participate in the meeting of the Open-Ended Working Group - we are asking
national groups, organisations and networks to meet with representatives of
government, write letters and set up a campaign for the Optional Protocol at
the national level.
For
the most part, participation in negotiations of this nature is the
responsibility of Ministries/Departments of Foreign Affairs. However, in many countries, other ministries
are also key, for example the Ministry of Labour, Ministry of Interior Affairs,
etc.
We
are interested to know whether your governments support the Optional Protocol
to the ICESCR or whether they oppose it. In either case, we would like to know
the factors that informed their decision.
We
would also like to know whether your governments intend to participate in the
meeting of the Open-Ended Working Group. If your government is supportive and is going to send a delegation,
you/your organization might also consider lobbying the government to be
included as a NGO representative on the delegation. If your government is not
supportive but you have a constructive working relationship with another
government, you might also consider approaching them to be accredited as a NGO
representative on the delegation. Be aware that governments do not often
support the cost of NGO representatives on their delegations.
Telling Us What You Have Learnt
When you learn of the government position, please feed the information back to the coalition distribution list at escrprotocolnow@yahoogroups.com. To subscribe to this list, please go to the following address: escrprotocolnow-subscribe@yahoogroups.com
Alternatively,
you could send your feedback to Coalition Steering Committee members at
op_coalition@yahoo.de.
To
ensure we are as effective as possible during the meeting of the Open-Ended
Working Group and in our work leading up to this event, please send this
information as soon as possible.
Information For Those Able To Attend The Working
Group In
Geneva
NGOs
can participate in the meeting of the Open-Ended Working Group as observers if
their organization has ECOSOC consultative status. They may also be accredited
to government delegations.
It
is important to have a large number of NGOs present at the meeting of the
Open-Ended Working Group for three key reasons:
- It demonstrates
broad-based civil society support for the initiative
- It creates a
climate of accountability for governments as they articulate their views
on the development of the Optional Protocol to the ICESCR
- It enables NGOs
around the world to track negotiations and mobilize support as required.
The
Coalition will meet regularly during the Open-Ended Working Group. In
particular, we will organize, where possible:
- a pre-meeting strategy session
- regular briefings with Coalition members
- regular meetings with “friendly” governments
- regular email briefings to Coalition members unable to
attend the
- lunch-time seminars during the course of the
Accreditation For The Open-Ended Working Group
To
participate as an observer of the Open-Ended Working Group you need to be
accredited. Information about accreditation is posted on the website of the
Office of the High Commissioner for Human Rights. You can check this website
at: http://www.ohchr.org/english/issues/escr/group.htm.
Before You Leave
Before
you leave, it is important that you have prepared!
In
preparation for the Working Group, please refer to other sections of this
Advocacy Kit, including: “Ideas For Getting Involved - What Can You Do?”,
“Preparing For The Working Group” and “How to Lobby Your Government”.
Also,
please tell the other NGO Coalition members that you are coming, so that we can
be sure to include you in all of our activities. Email us at
op_coalition@yahoo.de.
Information For Those Working From Home
While
NGOs can participate in the meeting of the Open-Ended Working Group as
observers, this can be expensive. Additionally, it is vital to ensure that
there are informed advocates in capitals who can exert immediate pressure on
governments if it is required.
For
the duration of the meeting of the Open-Ended Working Group we will send
regular updates on the state of negotiations. If required we may also ask
individual partner organizations to undertake specific activities to bring
about a change in position, or to encourage governments to remain firm if they
are taking a positive position.
In
preparation for the Working Group, please refer to other sections of this
Advocacy Kit, including: “Ideas For Getting Involved - What Can You Do?”,
“Preparing For The Working Group” and “How to Lobby Your Government”.
How To Lobby Your Government
It
is essential that governments know that there is support for an OP-ICESCR, and
also that they understand fully the benefits and know how to refute
challenges. This Advocacy Kit has been
designed to help you make this happen.
It may be useful for you to print out the different sections of the Advocacy
Kit and include them in briefing kits or lobbying letters.
Mobilising Support to Influence Your Government
If
your government is not supportive of the OP-ICESCR, we ask that you mobilise as
much support as possible to influence them to change their minds. Activities
you might consider include:
- direct meetings with the responsible minister
- visits to influential parliamentarians (for example, if
there are sub-committees on treaties, the chair of the committee might be
useful to visit; the Attorney-General might also be an appropriate person
to visit)
- letter-writing to the “letters page” of influential papers
(particularly if you know that relevant parliamentarians “monitor” the
media)
- letter-writing to the Minister and influential
parliamentarians
- a seminar on the development of the OP to the ICESCR,
to which you invite influential parliamentarians, bureaucrats, supportive
members of the judiciary and legal profession, academics, and NGOs.
If
your government is supportive of the OP-ICESCR, but does not intend to
participate in the Working Group, we ask that you mobilise as much support as
possible to influence them to change their minds and to attend and speak out in
favour of an OP-ICESCR. Activities you might consider include:
- direct meetings with the responsible minister
- visits to influential parliamentarians (for example, if
there are sub-committees on treaties, the chair of the committee might be
useful to visit; the Attorney-General might also be an appropriate person
to visit)
- letter-writing to the “letters page” of influential papers
(particularly if you know that relevant parliamentarians “monitor” the
media)
- letter-writing to the Minister and influential
parliamentarians
- a seminar on the development of the OP to the ICESCR,
to which you invite influential parliamentarians, bureaucrats, supportive
members of the judiciary and legal profession, academics, and NGOs.
Pro-Forma Letter to Send to Your Government
To
facilitate your own work with your national government we have also produced a pro-forma
letter to send to Members of Parliament, Bureaucrats, and Mission Staff.
Dear
Re:
The Optional Protocol to the International Covenant on Economic, Social and
Cultural Rights
As you may be aware, an
Open-Ended Working Group to consider the development of an Optional Protocol to
the International Covenant on Economic, Social and Cultural Rights (ICESCR) is
meeting for the third time in February 2006 in Geneva. We are writing to
ascertain your position on the drafting of the Optional Protocol to the ICESCR,
and to strongly urge you to support further negotiations on the issue.
Work towards an Optional Protocol
to the ICESCR provides an opportunity for the international human rights treaty
system to codify the increasing domestic jurisprudence on economic, social and
cultural rights. Moreover, work on the Optional Protocol to the ICESCR enables
governments to honour the commitments made during the Vienna Conference on
Human Rights, which affirmed the indivisibility, interdependence and
interrelatedness of all human rights and recommended that the Committee on
Economic, Social, and Cultural Rights work with the Commission on Human Rights
to examine a draft Optional Protocol to the ICESCR. In 1997 the Commission on Human
Rights received a draft Optional Protocol from the Committee on Economic,
Social, and Cultural Rights, and yet since then the international community has
been slow to act on progressing this matter.
In keeping with the Vienna
Declaration, we are sure that you will agree that it is imperative that
economic, social, and cultural rights be accorded full and equal recognition
within the United Nations human rights mechanisms. Four of the six
international human rights treaties currently have Optional Protocols. An Optional
Protocol to the ICESCR, similar to the one that has been in place for 25 years
under the ICCPR, is critical to ensuring that full recognition is accorded to
economic, social, and cultural rights. We would also emphasize that what is
being considered is an “optional” protocol. In other words, States can decide,
at a later date, whether to ratify the protocol once it exists.
We hope that the Government will
adopt a favourable position on this important issue. We will follow up shortly
to discuss the matter with you.
Media And Other Activities
In
conjunction with letter writing to governments, it may be useful to develop a
media strategy as part of your domestic activities.
Activities
could include:
- Developing an Opinion piece on the importance of
economic, social and cultural rights in your community
- Working with a friendly journalist to highlight a
particular economic, social or cultural rights issue in your community,
and asking them to also include information on the OP-ICESCR campaign.
This could be a particularly useful strategy if your government is not
supportive of the OP-ICESCR as it could lead to public engagement with the
issue
- Send a letter to the editor of a local paper. Again, if
the government is not supportive this could be a useful strategy. In
general letters to the editor should be no longer than 100 words. It would
be important to ground the general call for support of the OP-ICESCR in a
pertinent local ESCR issue.
- Exploring on-line media options in your community, and
offering the Opinion piece, with additional information on letter-writing
actions individuals can take.
- Contacting social-justice media outlets to see if they
will run the Opinion Piece, with additional information on letter-writing
actions individuals can take.
Besides
the letter writing and media strategy, you might also want to carry out other
activities to gather as much support as possible to influence your government
to improve its position on the Optional Protocol to the ICESCR. These might include:
- direct meetings with the responsible minister
- visits to influential parliamentarians (for example, if
there are sub-committees on treaties, the chair of the committee might be
useful to visit; the Attorney-General might also be an appropriate person
to visit)
- a seminar on the development of the OP-ICESCR, to which
you invite influential parliamentarians, bureaucrats, supportive members
of the judiciary and legal profession, academics, and NGOs.
Background on the ICESCR
Historical Background
At the end of the 1940s, the Cold War broke out and split
the former allies into two blocks - the “socialist east” and the “capitalist
west”. This new international system functioned at the expense of human rights,
which were turned into an ideological battlefield until the end of the 1980s.
The western block claimed civil and political rights to be the only “real
rights” and the only ones to bring freedom and well-being to the individual.
The eastern block retaliated, saying that economic and social rights were a
prerequisite for a true democracy in which civil and political rights make
sense at all. This led to a split in the envisaged Human Rights Covenant into
two covenants.
Following the Universal
Declaration of Human Rights (UDHR)
– which enshrines all human rights – by the General Assembly of the United
Nations, in a resolution adopted in 1950, the Commission on Human Rights was
encouraged to prepare a single Covenant to include all the rights of the UDHR in a legally binding document. In
the light of the totally different views of the states, and especially the
opposition of the Western states, the idea of a single Covenant had to be abandoned.
Instead an International Covenant
on Civil and Political Rights (ICCPR),
and another International Covenant on
Economic, Social and Cultural Rights (ICESCR)
were developed. Both Covenants were adopted in 1966 and entered into force in
1976. From the very beginning, civil and political rights were granted greater
attention and better monitoring and protection mechanisms. Economic, social and
cultural rights were considered as mere political aspirations and were denied
further protective mechanisms.
The end of the Cold War allowed for greater
attention to be devoted to economic, social and cultural rights and important
developments have taken place since the 1990s.
The universality, indivisibility, interdependence and interrelatedness
of all human rights is now recognised by the international community and the
United Nations Commission on Human Rights now has various special procedures
dealing specifically with economic, social and cultural rights. However, in
practice, economic, social and cultural rights are often not placed on an equal
footing with civil and political rights.
A practical example in the international
human rights system is that the UN permits individual complaints against
violations of the ICCPR, but not
against violations of the ICESCR: The
UN adopted an Optional Protocol to the ICCPR
to this effect immediately in 1966 (as a "package", together with the
ICCPR itself). There was no such
Optional Protocol for the ICESCR.
ICESCR Overview
The
International Covenant on Economic,
Social and Cultural Rights (ICESCR)
is the principle treaty in the United Nations human rights treaty system to
address peoples’ economic, social and cultural rights.
Once
a State has “signed up” to the ICESCR
they must allocate the maximum resources possible to ensuring economic, social
and cultural rights in their territory. However, the ICESCR also recognises different levels of economic development and
identifies the important role of international co-operation/development to the
realisation of economic, social and cultural rights.
The
ICESCR also requires that all of
these rights be available to all people, regardless of who they are, which
political system they support, who they love, who they worship, where they come
from or who their parents were. This is important because, as we know, very
often race or sex discrimination, or discrimination based on economic status,
political opinion, or religion is used as an excuse to exclude people, either
overtly or covertly, from housing, health care, education or work.
One
strength of the ICESCR is that it is
a legally binding human rights treaty. States can choose to “sign-up” to the
treaty (to “ratify” it). Once they have ratified it, they have a binding
obligation to work towards the realisation of the full range of human rights
covered in the ICESCR. For activists
this means that we can hold the State accountable for the actions they do, or
don’t take, to ensure a range of rights, including the right to health or the
right to housing. Human rights treaties provide guarantees, so the Convention
can become a useful tool for advocates, a roadmap for claiming and mobilizing
around our rights.
What Is In The ICESCR?
The ICESCR
not only identifies a range of economic, social and cultural rights, but it
also requires that all people have these rights without discrimination. The ICESCR also discusses the ways in which
states must work to realise the rights.
The rights outlined in the ICESCR include:
·
the right to work and
to just and favourable conditions of work, and to form trade unions;
·
the right to social
security;
·
protection of the
family;
·
the right to an
adequate standard of living, including food, housing and clothing;
·
the right to health;
·
the right to education
(including compulsory primary education); and
·
the rights to culture
and science.
These rights are not just based in the law.
They are also realised through the policies and programmes of governments. The
Committee on Economic, Social and Cultural Rights (CESCR) have done a lot of
work to determine the scope of these rights, and the types of laws, policies
and programmes that are required to realise them.
The ICESCR
requires that these rights be available without discrimination and that there
be equality between women and men in the realisation of the rights.
To aid the implementation of economic,
social and cultural rights (ESCR), the Committee on Economic, Social and
Cultural Rights adopted what is known as a General Comment (an interpretative
statement), which addressed the issues of progressive realisation and the
availability of resources, as well as developing the concept of a ‘minimum core
obligation’ “to ensure the satisfaction of, at the very least, minimum
essential levels of each of the rights”, asserting that:
… a
State party in which any significant number of individuals is deprived of
essential foodstuffs, of essential primary health care, of basic shelter and
housing, or of the most basic forms of education is, prima facie, failing to
discharge its obligations under the Covenant. … If the Covenant were to be read
in such a way as not to establish such a minimum core obligation, it would be
largely deprived of its raison d’etre.[12]
The General Comment further notes that
where the minimum core standards are not realised, resource constraints should
be considered within the context of the State Party having allocated “all
resources that are at its disposition in an effort to satisfy, as a matter of
priority, those minimum obligations.”[13]
Moreover, the CESCR noted that a lack of resources does not remove the
obligation to strive for implementation of ESCR or to monitor the actual extent
of implementation.[14]
This interpretation was codified by a meeting of civil society experts in 1997,
when a document entitled the Maastricht
Guidelines on the Violations of Economic, Social and Cultural Rights
(Maastricht Guidelines) was developed. The Maastricht Guidelines also discuss
the concept of a margin of discretion, the argument that “as in the case of
civil and political rights, States enjoy a margin of discretion in selecting
the means for implementing their respective obligations.”[15]
Through domestic adjudication of ESCR, and through the adoption of Concluding
Observations and General Comments, the CESCR and domestic jurisdictions have
developed a clearer understanding of the ways in which the minimum core
standards are realised in different contexts, while simultaneously asserting
the universality of ESCR.
You can find a full version of the ICESCR at www.ohchr.org.
Challenges Of ESCR
Despite
its importance, it cannot be denied that the implementation of the ICESCR has been an on-going challenge for
advocates. Notwithstanding continuous efforts to advance principles of
equality, non-discrimination, in addition to the economic, social and cultural
rights contained in the ICESCR,
violations of economic, social and cultural rights remain widespread in all
societies and cultures. Moreover, in many countries these rights are not
considered to be “justiciable” (i.e. opponents claim that it is not possible to
assess these rights through legal processes) and for this reason, remedies
don’t always exist. Often, these rights are violated by policies, laws and
social practices.
Nonetheless,
activists have found that it is useful to be able to frame their local
activities in the language of human rights, both because it provides a language
of individual empowerment and because it is a language of demand and
accountability of government. Moreover, it is a useful tool of international
solidarity, providing a common way of articulating the diversity of localised
experiences.
What Is The Role Of The Committee On Economic, Social And Cultural
Rights?
To ensure that States Parties are complying with the ICESCR, the Committee on Economic,
Social and Cultural Rights (CESCR) was established to monitor and review the
activities of States Parties. The CESCR meets twice a year, and has eighteen
independent experts, who are elected to the Committee by the States Parties to
the ICESCR. Every five years, States
Parties must submit a report to the CESCR outlining their successes and challenges
in implementing the ICESCR.
Governments must present their reports to the Committee, and the experts have
the opportunity of asking the government representatives a series of questions
about their report and the implementation of ESCR in their territory/ies. The
CESCR then issues a series of observations, known as Concluding Comments. The
Concluding Comments acknowledge both positive and negative measures, and
suggest actions which could improve implementation of the ICESCR or that would stop violations occurring. Increasingly, NGOs
are preparing “Shadow Reports” which provide the Committee with additional
information on ESCR in their communities.
The CESCR also works to interpret the content and meaning of
economic, social and cultural rights through the adoption of “General
Comments”, interpretative statements on the parameters of the rights. In recent
years comprehensive General Comments on the right to housing and forced
evictions, health, education and water have been adopted. These are available
at the Office of the High Commissioner for Human Rights website (www.ohchr.org).
What is
an "Optional Protocol"?
Optional Protocols are additions to existing conventions
or treaties. They do not amend the text of the original treaty, but rather add
some obligations or create some additional mechanisms to monitor compliance
with the original instrument . They are
'optional' because governments can choose whether they want to ratify these.
Protocols may address any topic relevant to
the original treaty. The International
Covenant on Civil and Political Rights has two protocols, one on the
abolition of capital punishment and the other on individual complaint mechanism.
An
Optional Protocol introducing a complaint (or rather, a communication)
mechanism is of a procedural nature and enables individuals to seek justice
internationally, if they have been denied access to justice domestically. It is
attached to the “parent” treaty, in this case the International Covenant on Economic, Social and Cultural Rights. It
is a separate legal text which establishes a mechanism for accountability.
In
the UN Human Rights Treaty System, an Optional Protocol grants the human rights
Committees quasi-judicial powers. That is, through an Optional Protocol the
Committee can begin to review individual communications in a similar way to
that of a traditional human rights court. Also, in cases of grave and
systematic violations of human rights, some Committees can initiate an
investigation in an attempt to hold States Parties accountable.
If
you want to find out whether or not your country is a State Party to the ICESCR,
you can check this information at the website of the Office
of the High Commissioner for Human Rights website (www.ohchr.org).
How Other Communications & Inquiries Procedures Work
Most of the other treaties in the UN Human Rights Treaty System
have a capacity to receive individual communications or launch inquiries:
·
the Human
Rights Committee, which monitors the International
Covenant on Civil and Political Rights, can receive individual communications,
and can initiate “urgent action” processes in cases of imminent danger;
·
the
Committee on the Elimination of Racial Discrimination, which monitors the International
Convention on the Elimination of all forms of Racial Discrimination,
can receive individual communications, and can initiate “early warning” and
“urgent action” processes in cases of concern or imminent danger;
·
the Committee on the
Elimination of Discrimination Against Women, which monitors the Convention on the Elimination of all forms
of Discrimination Against Women, can receive individual communications and
launch investigations of grave or systematic breaches;
·
the Committee Against
Torture, which monitors the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
can receive individual communications and launch investigations into the
systematic practice of torture; and
·
the Committee on the
Protection of the Rights of All Migrant Workers and Members of Their Families,
which monitors the International
Convention on the Protection of the Rights of All Migrant Workers and Members
of Their Families, can receive individual communications.
To lodge a “case” with one of the Committees, an individual needs
to have experienced a breach of the human rights contained in a particular
treaty. They also need to have tried to achieve justice for that violation
through domestic processes. If that has been unsuccessful, or there were no
avenues for redress, then they can lodge a communication with the appropriate
Committee. One of the challenges is to pick which treaty is most applicable.
Once the Committee has received the communication, they consider whether or not
it is admissible, that is whether or not it really fits the rights in “their”
treaty. If they decide that the case is admissible, they then consider the
“merits” of the case to determine whether a breach occurred. If they find that
a breach occurred they can make a series of recommendations to the government, “views”
on “remedies”. The views focus on providing relief for the individual, but also
identify the violations and cause of the violations, and as such, can be used
in domestic advocacy campaigns to change those laws, policies or programs.
Governments are then required to consider the recommendations, take appropriate
actions, and report back to the Committee within a specified time-frame. The
Committees also have the power in the early stages to require States Parties to
take “interim measures” to avoid possible irreparable damage to the victim or
victims of the alleged violation.
Further Information On The Optional Protocol To The ICCPR
An
Optional Protocol allowing for individual communications (“complaints”) under
the ICCPR came into force in 1976 and
since then has demonstrated a number of benefits. As of December 2002, 104
States had ratified the Optional Protocol to the ICCPR. Thanks to the individual complaint procedure, several
countries have changed their laws, in a number of cases prisoners have been
released and compensation paid to the victims. Moreover, a wider consensus has
been achieved on the content of the obligations undertaken by the States
parties to the ICCPR. The presence of
the Optional Protocol has allowed victims to obtain restitution and redress for
violations of their civil and political rights and has
contributed to enhance the implementation of the rights enshrined in the ICCPR.
Further Information On The Optional Protocol To CEDAW
What is important to know about this OP is that it took 3 years to
make it happen! Serious work on the instrument began in 1996, negotiations
started in 1997 and by December 1999, the text was adopted and open for
signature to States parties to CEDAW.
In less than four years, of the 167 States Parties to CEDAW 75 have signed the OP and of those, 49 have ratified it .
The
OP to CEDAW is the only OP that establishes an inquiry procedure through which
the CEDAW Committee can launch an inquiry into grave and systematic violations
of women’s rights in a particular country at its own initiative.
Until
now, only a very limited number of communications have been fully reviewed by
the CEDAW Committee (and no inquiries). However, contributions to the
development of ESCR jurisprudence are likely to be made.
Benefits Of An OP-ICESCR (short version)
Why An OP To The ICESCR?
One
of the strengths of an Optional Protocol to the ICESCR is the potential role it could play in securing the
implementation of economic, social and cultural rights in countries around the
world. In particular cases, individuals who have been unable to access justice
at the domestic level would be able to take their complaint to the CESCR. It
would then have the authority to review the case, and determine whether any of
the rights under the ICESCR had been
violated. Cases decided under other Optional Protocols have changed the laws,
policies and programs of governments around the world.
Another
benefit of an Optional Protocol is the contribution it will make to better
understanding the scope of the rights contained in the ICESCR. This combined with the work of the CESCR in reviewing country
reports, and adopting general comments, will lead to a stronger base for the
implementation of economic, social and cultural rights in our own communities.
It
also contributes to the universality and indivisibility of human rights. At
present, some governments continue to challenge the validity of economic,
social and cultural rights, claiming that they are not “justiciable”, that is
that there is no legal right which attaches to them. Adoption of an Optional
Protocol to ICESCR would change this
perception, and would finally provide equality between civil and political and
economic, social and cultural rights.
How Could An Optional Protocol To the ICESCR Contribute To Local Economic, Social And Cultural Rights
Work?
The beauty of an Optional Protocol to the ICESCR is its capacity to contribute to an existing economic,
social and cultural rights campaign. Because the Optional Protocol to the ICESCR would require that all domestic
judicial processes have been exhausted it is likely that the case will already
have been linked to domestic campaigns. Moreover, because the CESCR recognises
that both judicial and programmatic responses are required to implement ICESCR rights, the CESCR would make
recommendations in both areas.
Benefits Of An OP-ICESCR (longer version)
The
Coalition for the Optional Protocol to the ICESCR
strongly believes the Optional Protocol will benefit individuals, States
Parties and the international community through:
BENEFIT ONE: Providing an International Remedial Mechanism for the
Infringement of ICESCR Rights
The OP-ICESCR will provide individuals and
groups with access to international remedies where Covenant rights have been
violated. A right internationally recognized but without an international
individual procedure of protection is an imperfect right. Ideally comprising of a communication's mechanism and an inquiry
procedure, the Optional Protocol to the ICESCR would possess the potential to
significantly contribute towards the realisation of economic, social and
cultural rights as enshrined in the Covenant.
Whereas the Optional Protocol
communication's mechanism would provide individuals and groups with access to
an international adjudicative procedure and remedies concerning specific
Covenant violations, the inquiry procedure would empower the CESCR to initiate
an investigation into particularly grave ICESCR abuses. The inquiry procedure
would strengthen and compliment the proposed Optional Protocol communication's
procedure as it would:
(i)
Address
situations where individual/group communications could not adequately reflect
the gravity or the systemic nature of violations of the provisions of the
Covenant;
(ii)
Allow grave
and/or systematic Covenant violations to be investigated where individuals or
groups were unable to utilise the communication's mechanism for reasons
including fear of reprisals; and
(iii)
Enable
a more-timely response to grave and/or systematic violations of the provisions
of the Covenant, and to continuing
violations in particular.
BENEFIT TWO: Identifying and Clarifying State Party ICESCR
Obligations
As demonstrated through the first Optional Protocol to
the ICCPR, an OP-ICESCR would
contribute, through the development of international jurisprudence, to the
further understanding of the rights contained in the ICESCR, to the identification
of what constitutes a violation of these rights and to the definition of
corresponding State party obligations.
Further, the Optional Protocol would assist
in transforming general ICESCR provisions into concrete, tangible and
achievable norms. In focussing, through
the communications procedure, on specific
violations of the rights of the individual, the Committee would provide States
parties with guidance as to their Covenant
obligations in actual situations. These recommendations in turn could
constitute guidelines for the effective domestic implementation and promotion
of economic, social and cultural rights as contained in the Covenant.
BENEFIT THREE: Assisting States Parties in Protecting and Promoting
Covenant Enshrined Rights
The elaboration of an OP-ICESCR will
encourage States parties to take steps towards the full implementation of all
rights enshrined in the Covenant.
This would mark an important step in strengthening the principle that, through
ratification, States parties have committed themselves to progressively realise
Covenant rights. Through the promotion of the Optional Protocol’s communication
mechanism and inquiry procedure, States parties would be provided with further
opportunities to develop the concept of economic, social and cultural rights at
the national level, to increase understanding and awareness of these rights and
to remedy any existing inequalities in their laws, policies or procedures. The
Optional Protocol will encourage the implementation of all the rights enshrined
in the Covenant through progressive changes in national law and policy. Such
changes will, in turn, trigger an increased recognition of economic, social and
cultural rights at all levels of society and assist all, including the most marginalized,
to seek and access justice.
BENEFIT FOUR: Encouraging the Development of Domestic Jurisprudence
Concerning Economic, Social and Cultural Rights
The Optional Protocol would provide States parties with
a direct role in the development of international economic, social and cultural
rights jurisprudence i.e. a body of case law that could be used by the
Committee and others in interpreting the provisions of the Covenant and
clarifying state obligations. In turn, international ICESCR jurisprudence would
promote the development of domestic jurisprudence on economic, social and
cultural rights issues. In deliberating on issues such as the right to health,
housing and social security, national level Courts could take judicial notice
of international Optional Protocol jurisprudence towards the further domestic
recognition of economic, social and cultural rights. In essence, the concept of
violations of economic, social and cultural rights, how they should be recognized
and interpreted and how it might be remedied will be investigated and
documented within national and international tribunals. Such documentation will
in turn be vital in influencing the enactment, execution and interpretation of
domestic laws or procedures to protect the rights as contained in the Covenant.
BENEFIT FIVE: Strengthening International Enforcement of Economic,
Social and Cultural Rights
The OP-ICESCR will serve to strengthen the relationship
between States parties and the Committee by creating an impetus, at the
national level, for nations to promote the effective national implementation of
ICESCR rights. Through this instrument, States parties will
be furnished with incentives to provide detailed information to the Optional
Protocol adjudicative body that would serve to strengthen the institutional
knowledge of the ICESCR reporting mechanism. Scholars and non-governmental
organisations have long noted that one of the major constraints faced by the
Committee, in the development of its working practices, has derived from the
absence of a provision that requires State party co-operation beyond the
submission of periodic reports. The Optional Protocol would thus lead to a new
and more involved relationship between the Committee and States parties. Given that the Covenant and its Optional
Protocol would comprise the sole specific international communications
mechanism dedicated to economic, social and cultural rights, this is of the utmost
importance, both for the legal development of the rights at the international
level, and for the progressive interpretation and enactment of law at the
national level.
BENEFIT SIX: Reinforcing the Universality, Indivisibility,
Interrelatedness and Interdependence of All Human Rights
Gathering together representatives from over 170
States, the 1993 Vienna World Conference on Human Rights was unequivocal in
confirming the universality, interdependence, indivisibility and
interrelatedness of civil, cultural, economic, political and social rights. The
Vienna Declaration mentioned that “All human rights are universal, indivisible
and interdependent and interrelated. The international community must treat
human rights globally in a fair and equal manner, on the same footing, and with
the same emphasis.” Given the existence of an international communication's
procedure concerning the adjudication of ICCPR rights infractions, the creation
of an OP-ICESCR would provide States Parties an excellent opportunity to
reinforce the universality, interdependence, indivisibility and
interrelatedness of all human rights.
BENEFIT SEVEN: Increase Public Awareness of Economic, Social and
Cultural Rights
The OP-ICESCR would place a renewed
emphasis on economic, social and cultural rights nationally and
internationally. The publication of communications, inquiries and views of the CESCR
would serve to promote public awareness, nationally and internationally, of the
human rights standards enshrined in the ICESCR. This has been the case with communications submitted under existing
complaints procedures and in particular, communications under the first
Optional Protocol to the ICCPR.
Key Issues Regarding The OP-ICESCR
ISSUE ONE: ESC rights are not capable of being applied by judicial
bodies. They are not justiciable.
One of the major
arguments used against an OP to the ICESCR is that ESC rights are not
justiciable and, as a result, cannot be the object of an individual complaint
procedure. Developments at the domestic and regional levels show, on the
contrary, that ESC rights can be subjected to the scrutiny of a court of law or
another judicial or quasi-judicial entity.
Over
the preceding decades, a jurisprudence surrounding ESC rights has gradually
emerged. Domestic and regional courts have, in many instances, adjudicated
issues related to the enjoyment of ESC rights, offering an adequate remedy to
the victims. As a result, a wide range of case law related, among others, to
food, health, shelter and education, etc. has emerged. In dealing with
economic, social and cultural rights courts have also developed innovations in
procedures to deal with economic, social and cultural rights. As such, the
existence of domestic and regional case law related to ESC rights bear witness
to the direct justiciability of these rights.
Indeed, today, an
increasing number of countries, across all continents and legal systems, have
incorporated judicial review of economic, social and cultural rights. These
include South Africa, Finland, Argentina, Colombia, Mexico, Costa Rica,
Venezuela, Spain, Mauritius, Canada, Latvia, France, India, Bangladesh,
Nigeria, and most countries in Central and Eastern Europe.
Moreover,
governments have increasingly supported the justiciability of ESC rights in
numerous fora. Complaint procedures for violations of ESC rights have been
developed at the regional level (i.e. African Charter of Human and Peoples’
Rights and Duties, Collective Complaints Procedure under the European Social
Charter and the Inter-American San Salvador Protocol).
ISSUE TWO: ESC rights are too vague to be applicable to a case-based
complaint procedure
It is often claimed
that ESC rights are not rights but political aims, alleging that they represent
too vague provisions to be enforceable. This perception has been overcome by
different developments related, notably, to the nature, content and scope of
ESC rights, as well as to related State obligations.
General Comments of the Committee on
Economic, Social and Cultural Rights (CESCR), work of UN Special Rapporteurs,
experts, academics and NGOs, as well as national and regional case-law have all
significantly contributed to refute this assertion and clarify State
obligations ensuing from the ICESCR.
CESCR’s General Comments, along with the
doctrine and existing jurisprudence offer precise descriptions of ESC rights’
content and scope, as well as of the respective State obligations to respect,
protect and fulfil. In addition, that same sources also offer a clear
description of how the concepts of “progressive realisation” and “available
resources” apply to such obligations. As such, a certain degree of interpretative
certainty and predictability can be expected.
In this respect, further clarification can
only take place on a case-to-case basis, which is precisely why a complaint
procedure is needed.
ISSUE THREE: ESC rights involve questions of resources allocation
and public policy that should not be dealt with by courts
Suggestions that
matters involving the allocation of resources and public policy questions
should be left to the political authorities rather than the courts relate to
the concern that the judiciary should not intervene in such fields, which are
said to be the exclusive domain of governments.
First, it is
important to remember that, as it is the case of civil and political rights,
States enjoy a margin of discretion in selecting the means for implementing
their respective obligations. In this respect, when national courts have
intervened to order that specific programme or policy be implemented, the
orders have, in most cases, given a wide degree of discretion to the government
to devise the appropriate response. For instance, the Bangladesh High Court
noted in 1999 that in order to fulfil the basic rights of equality, life and
livelihood, the government had to complement its project to demolish
slum-dwellings in Dhaka with a plan to rehabilitate the dwellers and that the
project needed to be carried out in stages with reasonable notice given to
evict.[16]
With regard to the progressive realisation of ESC rights, courts have shown the
capacity to set boundaries for their intervention. For instance, the Swiss
Federal Court has said it lacked the “competence to set priorities in
allocating resources” but would intervene if the legislative framework failed
to ensure constitutional entitlements.[17]
Secondly, while the
respective competences of the various branches of government must be respected,
it is appropriate to acknowledge that courts are generally already involved in
a considerable range of matters with important resource implications. The
adjudication of civil and political rights, as well as many other legal rules
such as trade law, regularly impinges upon the political options of
governments, notably with regard to the allocation of resources. Indeed, while
judges should respect the division of competences between the various branches
of government, it is important to recognise that their decisions frequently
have budgetary consequences.[18]
For instance, the right to a fair trial necessitates significant financial
investments in court systems, and frequently legal aid.[19]
Similarly, the protection against torture and other forms of cruel, inhuman or
degrading treatments also requires financial prioritization in term of police
training, construction of prison facilities, protection of the victims, etc.
While it is obvious that the realisation of civil and political rights involve
allocation of resources, the related costs are often not considered because the
institutions are already in place.
Thirdly, in many
cases, the realisation of ESC rights will only require a government to refrain
from certain behaviour or to regulate the actions of third parties. For instance,
State Parties to the ICESCR have to ensure that there are not arbitrary
restrictions on the right to work or that no forcible evictions are carried out
in the absence of adequate compensation and resettlement. In such cases, the
realisation of ESC rights does not involve questions of resource allocation and
does not requires the adoption and implementation of policies, programme or
measures.
Fourthly, while
issues of social and economic policy involve complex questions that are
difficult to resolve on a case-by-case basis, courts frequently deal with many
questions concerning the public interest. For instance, judgments on the right
to freedom of expression will involve certain contested interests. As a result,
the judges will have to balance the notion of public or national interest with
the restrictions put to the enjoyment of the right to freedom of expression.
Such balancing act between contested interests can be easily applied within the
realm of ESC rights.
Further, concerns
expressed about the democratic legitimacy of courts are often raised in
relation to the suggestion that they should not get involved in matters related
to the allocation of resources and public policy issues. In this regard, while
judicial officers are not elected by popular vote, governments appoint many
courts members. In addition, judicial bodies have shown a capacity to uphold
the rights of individuals and groups in the face of hostile or negligent State.
While
ESC rights may often involve significant issues of resource allocation, over-emphasizing this aspect of ESC rights
may sometimes serve to obscure the serious issues of injustice which leave
large segments of society without access to work, education or adequate food,
clothing and housing. It is often only
from the standpoint of dominant groups that ESC rights claims appear as demands
that governments “provide” for particular needs rather than as demands that
government decision-making conform with the recognition of the equal dignity
and worth of all members of society.
For
example, a demand by people with disabilities that resources are allocated for
the provision of wheelchair ramps in public buildings is only necessary when
buildings have been designed as if people with disabilities did not exist. Any attempt in the OP to weaken remedies or
exclude rights that involve resource allocation is likely to exclude the most
disadvantaged groups and the most critical aspects of injustice from effective
review. Often these issues are precisely
the ones which require the consideration of individual complaints in order to
understand the link between government decision-making and individual dignity
and security.
Because of their important implications for human rights,
resource allocation decisions have never been excluded from human rights
review, either domestically or internationally.
To the extent that decisions affect the enjoyment of human rights they
must be subject to review for compliance with human rights standards. No category of decision-making can be exempt
from review. When the rights and
survival of so many are at stake in these decisions, however, it is important
that they not be considered exempt from serious review for compliance with
human rights norms.
There are considerations in human rights review of resource
allocation to which courts and other adjudicative bodies must be, and have been
sensitive. These relate primarily to
polycentricity and competing rights. If,
for example, in the consideration of complaints under the OP, the Committee
were to rush to find a violation of the right to education and recommend that
significant resources be allocated to fulfilling that right, without
considering competing needs for resources to fulfil the right to adequate food,
clothing, housing and medical care, the decisions of the Committee would have
little credibility.
This is no different from the need for the consideration of
competing rights and needs in the adjudication of other human rights, for
example, balancing the rights of accused with the rights of victims and of
other members of society, or the rights of those vulnerable to hate speech with
the right to freedom of expression.
Human rights adjudication is, by its very nature, complicated by these
types of competing concerns. It is by
developing and demonstrating competence in adjudicating these types of
disputes, and exercising appropriate institutional restraint, that courts and
other human rights institutions are able to win the respect of both rights
claimants and governments.
With increasing numbers of jurisdictions making ESC rights
justiciable at the domestic level, courts have shown that they are capable of
developing meaningful standards by which to review resource allocation
decisions against the requirements of ESC rights, without usurping the role of
legislatures or ignoring the importance of the many competing demands on
resources that are faced by governments.
If the OP were to suggest that resource allocation decisions
are inherently ‘political’ and on this account exempted this category of
decision-making from complaints of violations of rights, the restriction would
represent an unprecedented attack on the supremacy of human rights and the rule
of law, and would discriminate against groups that are most in need of access
to the complaints procedure the protection of the ICESCR.
ISSUE FOUR: Judicial remedies are not effective in realising ESC
rights
It is sometimes
argued that judicial or quasi-judicial remedies alone cannot bring about
systemic changes necessary for the complete realisation of ESC rights.
The first object of
judicial or quasi-judicial remedies, at the national or international levels,
is to provide adequate redress and compensation to victims of human rights
violations, as well as to guarantee the cessation and non-repetition of the
violation. Such objective remains the same across the whole human rights
spectrum and applies in cases of civil and political rights, as well as
economic, social and cultural rights.
As judicial or
quasi-judicial entities look at specific cases of human rights violations,
judicial or quasi-judicial remedies will always be limited in term of their
ability to address or change a whole country situation. In this regard, such
limitation applies irrespectively to civil and political rights, as well as to
economic, social and cultural rights. For instance, it is unlikely that a
decision of the Human Rights Committee on a torture case in a given country
will be effective in putting a stop to an institutionalised practice that is
taking place throughout the country in question. Indeed, it is more the
conjunction of different actions and factors that can trigger change in a given
situation and can prove effective in realising economic, social and cultural
rights as well as civil and political rights. Judicial or quasi-judicial
remedies play, in this respect, a crucial role.
Indeed,
litigation can spur legislative changes, attend to individuals or group
complaints and provide a constant and watchful accountability mechanism over
legislative and administrative spheres. Litigation can also play a useful
educative and transformative role in the dissemination and understanding of
human rights principles.
ISSUE FIVE: A complaint procedure for ESC rights would imply a huge
financial burden for States
An argument that is
sometimes put forward against an OP to the ICESCR is that a complaint procedure
for ESC rights at the international level would have huge financial
implications for States. This argument relates to the assumption that ESC
rights only require action by governments with important financial
implications.
However, in many instances, the realisation of ESC rights does require restraint by governments, i.e. refraining from certain behaviour or regulating the actions of third parties. As mentioned in General Comment No. 12 of the CESCR, the International Convenant on Economic, Social and Cultural Rights impose three different types of obligations on States: the obligations to respect, protect and fulfil.[20] Under the obligations to respect and protect States have to refrain from interfering with the enjoyment of ESC rights and to prevent violations of these rights by states agents or abuses by third parties.[21] In both cases, the realisation of ESC rights does not impose huge financial burden upon States, as it does not imply the adoption and implementation of expensive programme or measures. Furthermore, the Optional Protocol providing for a complaint mechanism will be per se a procedural instrument and does not introduce new obligations others than the ones that states have already accepted by the ratification of the ICESCR.
More
generally, state
obligations under the ICESCR are subject to available resources. In that context,
domestic courts and regional bodies have demonstrated that they are able to
assess
requirements in relation to the financial burden imposed and to assess these
obligations without imposing unmanageable financial burdens on states lacking
necessary resources.
ISSUE SIX: A complaint procedure for ESC
rights would create new ESC rights and corresponding new obligations for States
It
is sometimes suggested that an OP-ICESCR would create new obligations for State
parties to the ICESCR.
First of all, as indicated by its name, the
OP to the ICESCR will remain an option for States. In other words, States will
not be obliged to ratify such instrument.
Secondly, the OP-ICESCR will not create new
ESC rights and corresponding obligations
for States but a new complaint procedure for rights and corresponding obligations that already exist under
the ICESCR. In this regard, the
procedure created by an OP to the ICESCR
will not be different that the ones existing under the First Optional Protocol
to the International Covenant on Civil
and Political Rights (ICCPR), the
Convention against Torture and other
Forms of Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Elimination of Racial
Discrimination or the Optional Protocol to the Convention on the Elimination of Discrimination against Women.
ISSUE SEVEN: A complaint procedure for ESC rights would compete or
conflict with other complaint procedures
Complementarity
in the human rights framework is not a new issue. Indeed, complementarity
between different human rights mechanisms can be found at the regional and international
levels and with respect to conventional and non-conventional mechanisms. It
results from the development of human rights law, along with the identified
need to bring special protection to vulnerable groups, address particular
subjects of concern or respond to regional specificities. Within the human
rights framework and with respect to individual complaint mechanisms,
complementarity can be understood from two different perspectives: one specific
right may be covered by several instruments or mechanisms and one particular
individual may have access to several mechanisms.
With
respect to the OP to the ICESCR, concerns have been raised that such a
mechanism would duplicate, to a certain extent, the work carried out by other
bodies such as the Human Rights Committee, the Committee on the Elimination of
Discrimination against Women, as well as the International Labour Organisation
(ILO) and the United Nations Educational, Scientific and Cultural Organisation
(UNESCO).
In examining the issue of complementarity between
the proposed Optional Protocol and other international and regional complaint's
mechanisms adjudicating over economic, social and cultural rights infractions,
it is acknowledged that some degree of overlap exists between the proposed
instrument and existing regional and international complaint's procedures. That
said, existing international and regional economic, social and cultural rights
complaint's mechanisms are fairly limited in terms of the subject matter that
they are competent to adjudicate over and/or the complainants provided with
standing, (the capacity to submit a communication). Here, for example, an
International Labour Organisation complaint's mechanism primarily confines
itself to communications from governments, workers' and employers'
organizations concerning allegations that member States are not respecting
basic freedom of association principles while a UNESCO complaint's procedure
entertains only a narrowly defined class of complainants and the process is
confidential. Given the structural constraints of existing economic, social and
cultural rights complaint's mechanisms, access to these procedures is limited,
either in terms of the economic, social and cultural rights covered and/or in
terms of the individuals/groups competent to lodge a complaint.
Overlap
between the rights covered by different individual complaint mechanisms is
common in the realm of civil and political rights and does not seem to create problems
or to raise concerns in that field. For instance, the Committee Against Torture
is authorised, under Article 22 of the Convention
against Torture (CAT), to receive complaints from individuals who claim to
be victims of a violation of the provisions of this Convention by a State party
that has made a declaration under this Article. This provision does not prevent
the Human Rights Committee from receiving individual complaints regarding
alleged violations of Article 7 of the ICCPR, under the Optional Protocol to
this Covenant. Neither does it prevent the Inter-American Commission, the
Inter-American Court, or the European Court on Human Rights to look at
individual complaints related to torture and other cruel, inhuman or degrading
treatment. Moreover, the right to freedom of association, covered by the
Optional Protocol to the ICCPR, has not been excluded from the individual
complaint procedure on the grounds of overlap with the ILO Committee on Freedom
of Association. Similar examples could be given with respect to other
individual complaints mechanisms, including the Convention on the Elimination of Discrimination against Women
(CEDAW) and the Convention on the
Elimination of all Forms of Racial Discrimination (CERD).
The OP mechanism will be complementary to
other procedures, it would not compete or conflict with other procedures. For example, the OP to CEDAW only covers sex
discrimination; the OP to ICCPR mainly addresses civil and political rights;
regional mechanisms do not cover Asia and the Pacific; the Inter-American
system only provides for individual communications in relation to education and
forming and joining trade unions; and in Europe the à la carte system does not cover all ESCR and does
not provide for individual communications.
Additionally, if an OP were to be adopted, it will complement the
existing procedures within specialised agencies. Indeed it would deepen the existing
cooperation between the CESCR and UNESCO and ILO.
Further,
potential duplication of work between these different mechanisms has not
created problems or raised potential concerns because all these procedures
contain clauses preventing the examination of a case that would be, at the same
time, under consideration by another procedure of international or regional
settlement or investigation.
The
interdependence, indivisibility and interrelatedness of all human rights, reiterated
in the Vienna Declaration and Programme of Action adopted by the Second World
Conference on Human Rights in 1993, requires that the same standards be applied
equally to economic, social and cultural rights and civil and political rights.[22]
In this respect, the Draft OP to the ICESCR
follows the same approach as its civil and political rights predecessors
concerning the ‘examination clause’, stipulating that an individual complaint
cannot be examined concurrently by more than one mechanism. The interdependence,
indivisibility and interrelatedness of all human rights also highlights the
need that a complaint procedure for ESC rights be able to look at the full
range of economic, social and cultural rights.
Questions And Answers
Why Is An ‘à la carte’ Approach Problematic?
During the debates at both sessions of the Open-Ended
Working Group and at other inter-sessional forums, there appears to have been
little or no agreement as to the meaning of the so-called “à la carte” approach.
Rather, it appears that there are many different variations of “à la carte” approaches to an Optional Protocol that have been
suggested.
The NGO Coalition considers that any à la carte formula would undermine the indivisibility of human
rights and would be extremely detrimental to the realisation of ESC
rights. Any of the proposed à la carte approaches would represent serious assaults on the
integrity and inter-dependence of Covenant rights, and on the principle that
the OP should enhance the implementation of the Covenant and promote access to
effective remedies rather than restricting the scope or application of any
aspects of the Covenant.
Many of the rights contained in the Covenant are
already justiciable at the domestic level. A failure to protect their
justiciability at the international level would be a step backwards, which could
have disastrous consequences domestically. Likewise, in many jurisdictions all
components and levels of obligations of the rights have been recognized as
justiciable. Any exclusion of components or levels of obligations of Covenant
rights from the OP would thus be a step backwards. Any options being considered under the rubric
of an à
la carte approach would
result in difficulties in the domestic implementation of the OP-ICESCR as it
would suggest that certain aspects of Covenant rights need not be subject to
effective remedies. This negative
message that would result would undermine efforts to improve and enhance
domestic implementation of the Covenant and would result in inconsistent and
inadequate domestic remedies for violations of rights in the ICESCR.
For example, state signatories to the Covenant
currently hold obligations to respect, protect and fulfil all rights contained
in the Covenant. In some countries,
these obligations can be upheld and tested in national courts, and in other
countries international obligations such as these are used as important
measures for guiding domestic jurisprudence.
If an Optional Protocol was adopted whereby violations of some rights
are subject to review and others not, it would undermine the perceived justiciability
of those rights excluded from such a procedure, significantly impacting the
ability to enforce these rights at a national level.
An à la carte approach would also seriously undermine the integrity
and effectiveness of the jurisprudence developed under the OP itself, as it
would be unclear to what extent decisions and reasoning was affected by the
particular constellation of rights chosen by the state party, and the Committee
would be forced to treat rights in compartmentalized fashion, rather than as
interdependent and integrated into the Covenant as a whole.
Any attempt to divide economic, social and
cultural rights into ‘justiciable’ and ‘non-justiciable’ components would undermine
the integrity and inter-dependence of all human rights, thwart positive
developments at the domestic and regional levels recognizing the justiciability
of economic, social and cultural rights, and create unworkable distinctions as
to the admissibility of communications based on the exact and distinguishable
violation in question. Further, it would prevent victims of certain types of rights violations
from receiving restitution, compensation and other remedies, and limit the
ability of victims to seek remedies for the full range of violations they may
suffer. It would create a discriminatory
exclusion of some categories of victims from the complaints procedure that
would be contrary to the principle in Article 2 requiring the equal enjoyment
of Covenant rights without discrimination.
The difficulty and confusion of an à la carte approach
is evident in the way in which there is little or no agreement as to what such
an approach would even entail at the outset.
A so-called “à la carte
approach” might take
different forms. For example:
(A) One approach could require States parties to
indicate which provisions of the Covenant would
not be covered by the procedure they have accepted by becoming a party to the
Optional Protocol. Each State would thus have to “opt out” in relation to
specified provisions if it wishes to avoid the application of the Optional
Protocol in relation to all of the rights recognized in the Covenant.
(B) A second approach could require States to “opt in”
to the procedure in relation to provisions of the Covenant which they would
specify upon becoming a party to the Protocol. This selective approach might
also take two forms (i) States may be able to select the rights included in the Covenant in relation to which a
communication would be accepted &/or (ii) States may be able to identify
the elements of the rights in relation to which it would accept the
communications procedure. For example, in regard to Article 11 the State could
accept the procedure only in relation to the right to an adequate food.
(C) A third approach could be one whereby the Optional
Protocol itself indicates the rights or the elements of the rights for which it
would be possible to submit communications.
(D) A fourth approach could restrict the Optional
Protocol to complaints alleging “grave and systematic violations”.
(E) A fifth approach could involve the Committee
assessing violations of only the “minimum core obligations”
(F) A sixth approach could frame an Optional Protocol
that only addressed violations of economic, social and cultural rights through
a discrimination framework (i.e. only violations of ESCR on the basis of
discrimination would be subject to review).
(G) An seventh approach could involve an Optional
Protocol being established to address only some levels of obligations (for
instance only the respect level, and not the protect or fulfil levels).
No doubt more approaches could be added to this list,
but what remains clear is that the so-called “à la carte approach” is not one option, but many.
The NGO Coalition considers that all of these options are
unacceptable.
None of these options is either workable or
acceptable. Determinations as to what
constitutes ‘grave or systemic violations’ or ‘minimum core obligations’, if
made into determinations of admissibility of complaints, are not only fraught
with difficulty and imprecision. Such
restrictions would almost certainly have discriminatory consequences, and
create arbitrary exclusions from the complaints process. Grave or systemic violations or core content
violations, for example, would likely be applied more frequently to developing
countries lacking available resources.
Complaints alleging violations found in more affluent countries would be
less likely to meet admissibility standards.
Many of the situations in which remedies may be more readily achievable
through available resources would be excluded, seriously undermining the
effectiveness of the procedure.
The practical unworkability of such approaches is
clear. For example, to address a
communication on the basis of whether a ‘core minimum obligation’ has been
violated or not requires an even greater level of analysis on the part of the
Committee than a simple determination of whether the right has been
violated. Likewise, to adopt an approach
that would consider only violations of some levels of obligations, for example
the obligation to protect, makes no practical sense from the perspective of
victims. While the typology of respect,
protect and fulfil is useful for interpretation, it has little relevance to
real victims of violations of ESC rights.
Any use of the “respect, protect, fulfil” typology of
obligations developed by the CESCR to clarify general dimensions of obligations
to deny access to the OP complaints procedure would be a perverse and
discriminatory application of the typology.
The different dimensions of obligation are by no means exclusive, and it
would be virtually impossible to make determinations of admissibility on this
basis without creating appearances of arbitrariness. A consideration of the complex claims that
have been adjudicated at the domestic level, for example, dealing with access to
HIV-AIDS medication or housing programs that do not attend adequately to the
needs of the homeless, demonstrates that most ESC rights claims often span all
three dimensions of obligations. Thus,
the result may be that most complaints would be admissible, but the
consideration of the complaint and of appropriate remedies would be distorted
by restrictions in the scope of the OP.
Restricting the OP to allegations of discrimination or
to severe deprivations that threaten the right to life would simply duplicate
procedures already available under the ICCPR and other Covenants. Jurisprudence emerging from such restrictive
admissibility requirements would provide little or no guidance to states
parties about how to provide effective remedies to other aspects of Covenant
rights.
The only acceptable option is to adopt an Optional
Protocol that is comprehensive in scope in terms of the rights and levels of
obligations that are subject to it.
Restricting the scope and application of the OP would indirectly give
validity to attempts by states parties to limit their accountability to certain
rights or components of the Covenant.
It would permit the continued exclusion of the most disadvantaged
victims of human rights violations from any complaints procedure and institutionalise
a second class status for economic, social and cultural rights. The NGO Coalition
emphasizes that any of the range of options that have been discussed under the
heading of the so-called à la
carte approach would compromise basic principles
of human rights and undermine the equal status of economic, social and cultural
rights in the UN system.
What About Self-Determination – Should This Be Included In The
OP-ICESCR?
The NGO Coalition considers that it is neither necessary
nor desirable to exclude the right to self determination from consideration
under an OP-ICESCR. The right to self-determination is recognized in exactly
the same terms in Article 1 of the International
Covenant on Civil and Political Rights (ICCPR) and is subject to
communications under the first Optional Protocol to that Covenant. However, the
Human Rights Committee has, in its practice, adopted a completely restrictive
approach to its application in relation to the communications procedure. The OP-ICESCR should not be drafted to
exclude self determination, but rather the possibility of hearing
communications related to violations of this right should be left open to the
CESCR to determine in accordance with the Covenant and the procedural rules of
the Optional Protocol.
As the NGO Coalition supports an OP-ICESCR
which gives standing to groups of individuals, it is hoped that a less
restrictive approach to the admissibility of communications including issues of
self determination will be taken by the CESCR than is currently taken by the
HRC. The right to self-determination is
of critical importance to indigenous people in particular, who frequently ask
that other Covenant rights be interpreted and applied inter-dependently with
the right to self-determination and the right of access to land and resources
through which to fulfil Covenant rights. Excluding Article 1 from the Optional
Protocol would seriously damage the value and integrity of the communications
procedure for these and other groups.
What About Friendly Settlement or Mediation – Should This Be
Included In The OP-ICESCR?
The NGO Coalition does not preclude the possibility that the OP may
include provision for the parties to reach an amicable solution on the issue,
based on the respect of human rights and the requirements of the ICESCR.
Attempts to achieve settlement between the parties, however, should not
be permitted to thwart the broader purposes of the Covenant. In addition, attempts to promote amicable
settlement must not be allowed to prejudice the subsequent consideration of a
communication/complaint should mediation fail.
In light of these concerns, mediation and settlement procedures should
comply with the following minimum requirements.
They must:
(a) be optional;
(b) be limited in time;
(c) be without prejudice;
(d) be disclosed only to
designated staff or members of the Committee, and
not placed before the same members of the Committee who may later review
the communication if the mediation should fail; and
(e) the terms of settlement
should be subject to review and approval by the Committee, and must also be
subject to follow-up procedures. This is
essential to ensure that the settlement reached is in accordance with the
Covenant and properly implemented.
Should a mediation or amicable settlement provision be included within
the Optional Protocol, it is vital that this be included only as part of a
broader communication procedure, and not viewed as an alternative to a
complaint/communication mechanism which takes the more tradition form such as
those provided for in relation to the other human rights treaties. An amicable settlement mechanism on its own,
without allowing for the possibility of resorting to a “full communication”
should the mediation fail, establishes a system whereby there is little or no
incentive for states to enter into such negotiations in good faith or with the
intention of providing appropriate redress for the violation in question.
How Should International Cooperation & Assistance Be Addressed?
The NGO Coalition considers that the issue of international
cooperation and assistance could be addressed either under an inter-State
complaint mechanism or a communications and inquiry mechanism.
Under a communications mechanism the Committee would
need to assess if, in a concrete case, the alleged victim(s) has suffered a
violation of his/her Covenant rights due to an action or omission which can be
attributed to a State party to the Covenant. There must be a causal link
between the State action and the violation of the victim’s rights.
The communications procedure would enable individuals
and groups of individuals to file complaints before the Committee. The
individual communications would refer to specific violations of the rights
guaranteed in the ICESCR. It would also allow them to seek redress for
violations of ESC rights that generally go unnoticed at the national level.
An inquiry procedure would allow the Committee to
investigate, on the basis of reliable information received or on its own
initiative, situations that appear to constitute a consistent pattern of gross
and systematic violation of human rights.
What Impact Will The UN Reform Process Have Upon the OP-ICESCR?
For
all of 2005 the UN has been preoccupied with the issue of reform. For our purposes, the proposed reform of the Commission
on Human Rights has some impact. Governments
have agreed that the Commission on Human Rights will be replaced by a new Human
Rights Council, however the details about how the new Human Rights Council will
operate (what its mandate will be, when it will meet, who will be members, etc)
are as yet still undecided. The Chair of
the General Assembly (where these decisions will ultimately be made) is hoping
that governments will be able to negotiate a decision on some or all of these
questions by the end of 2005. Until
then, everything is still very much up in the air!
In
many ways, many of these procedural details regarding the operation and
functioning of the new Human Rights Council will have little impact upon the
work of the OP-ICESCR Working Group – it just means that in future, decisions
about the OP-ICESCR will be made by the Council rather than the Commission, and
it will be Council members we need to engage with in particular rather than
Commission members, etc.
However,
where this is particularly relevant for the OP-ICESCR process in the short term
is in relation to moving the Working Group forward towards drafting an
OP-ICESCR. In light of the much-hoped support that will be shown in the next
Working Group for work to begin on drafting an OP, we as NGOs have, to date,
been working on the expectation that a vote will be taken at the next
Commission regarding a proposal to extend and expand the mandate of the Working
Group. As the mandate of the Working
Group expires after this next session, something needs to be done to continue
its work, or else the discussions at the UN regarding an OP-ICESCR will cease. In
the negotiations around the Commission reform issue and the move to the new
Human Rights Council, many countries have been focused on ensuring that at the
very least the Council takes over responsibility for all of the current mandates of the Commission (i.e. working groups
and other special procedures such as the Special Rapporteurs and Independent
Experts). This would ensure that the issue remains active at the UN. However, the way in which they are seeking to
protect these mandates is to support the idea that there should be one final
Commission which would be purely procedural in nature, which would meet for a
short period of time (less than the regular 6 weeks), with the primary purpose
of renewing all mandates and transferring the work of the Commission (and all
its mandates) to the new Human Rights Council.
Then, when the Council meets for the first time (the question as to when
is still undecided), it would be up to the Council to take over decisions
regarding the duration and scope of mandates, such as that of the OP-ICESCR
Working Group,
In
essence, the idea of a purely procedural Commission, one which would transfer
the mandates to the Council (and thereby protect their continuation), is not hugely
problematic, and indeed, many NGOs support this. Where this becomes somewhat problematic for
our purposes is that it potentially may not allow for the mandate of the
Working Group on the OP-ICESCR to be changed in order to allow the Working
Group to begin drafting an OP. This
would mean that we may end up having an extension of the current mandate (this is positive in terms
of continuing the work of the Working Group, but to continue discussions around
the current mandate and not progress to drafting would instead be a step
backwards as we lose the momentum and interest that has been generated thus far).
The
NGO Coalition is approaching this potential problem in two ways:
(a)
First, we have always
maintained that the current mandate of the Working Group (which requests the
Working Group to meet with “a view to
considering options regarding the
elaboration of an OP-ICESCR”) does not, per se, preclude the ability to
draft an OP-ICESCR. However, there are a
number of key states who made it clear in the original negotiations for this
mandate that, in their view, this mandate would not allow the Working Group to
begin drafting an OP. Thus while we will continue to hold the view that the
current mandate is and should be sufficient to let the work of drafting begin,
we recognise that this is not the easiest or preferred approach to adopt, and
that a clear mandate for drafting is preferable.
(b)
The main approach we
are adopting is that we are working with supportive states to ensure that in
the negotiations for the transfer of mandates to the Council that the important
issue of the work of this Working Group (and its need to progress to drafting
an OP) is not forgotten. We are hoping that the Resolution of the General
Assembly that is eventually agreed upon will still allow for some mandates
(i.e. in particular this one), to be amended before being simply renewed and
transferred, and that therefore there will be a need for the Commission on
Human Rights to address some elements of substance regarding mandates such as
this. Thus we are asking for this mandate to be dealt with slightly differently
to others, allowing for the mandate to be changed and for the work to continue
in a progressive manner, rather than simply a procedural renewal of the same
mandate. At this stage we believe we have the support of some key states on
this.
The
negotiations and discussions surrounding the reform issue, and in particular
the issue of the procedures that will be adopted for transferring mandates to
the Council, are still ongoing, and so no clear decision has been made
yet. Thus the potential impact upon the
work of our Working Group is unknown.
Whether there will be another Commission on Human Rights, and if so when
it will be held, for how long it will meet, or what decisions it will make, are
all still unanswerable questions. When
further information is available about the impact this will have upon the work
of the NGO Coalition & the future of drafting an OP-ICESCR, the NGO
Coalition Steering Committee will communicate this to the Coalition email
list.
What Impact Will The Treaty Body Reform Process Have Upon the
OP-ICESCR?
Another
process which has been undergoing consideration by the United Nations members
for some time now is Treaty Body reform. Various proposals, including from the
High Commissioner for Human Rights, have been raised, notably suggesting reforming
of the existing 7 human rights treaty bodies and their functions into one
unified Treaty Body. No doubt many members of our NGO Coalition hold differing
opinions about the advantages and disadvantages of such a proposed change, as
well as the procedural aspects regarding the operationalisation of this
idea.
For
the purposes of our focus on promoting the equal protection and promotion of civil,
cultural, economic, political and social rights, the NGO Coalition continues to
advocate for the adoption of an OP-ICESCR as a prerequisite to any Treaty Body
reform resulting in a unified Treaty Body. We believe that in relation to the
role the Treaty Bodies play in receiving and adjudicating communications, it is
vital that any unified Treaty Body be able to hear complaints regarding all human rights. In this regard, the
lack of an existing communications procedure could jeopardise the future scope
for protection of ESC rights if only the currently existing mechanisms are
reformed into a unified body. While there are many advantages that could be
gained from one body dealing with all human rights in a way that reinforces the
indivisibility and interrelatedness of all human rights, these advantages will
not be enjoyed unless the unified body has the competence to hear complaints
about economic, social and cultural rights violations as well as civil and
political rights violations.
Thus
the drafting and adoption of an OP-ICESCR will be a necessary step before
Treaty Body reform is possible – without the adoption of an OP-ICESCR any
unification of the existing mechanisms will further entrench the hierarchy
between the two “generations” of rights. Treaty Body reform has the potential
to aid in reinforcing our goal of better protecting and promoting economic,
social and cultural rights, but only if the reformed Treaty Bodies (or a
unified Treaty Body) can deal with economic, social and cultural rights as
thoroughly as it can deal with civil and political rights.
Toolkit On ESCR Justiciability
Can
courts enforce economic, social and cultural (ESC) rights? Should UN treaty
committees be able to give an opinion that a State has violated such rights and
recommend appropriate action to remedy the violation? These questions are
frequently raised during discussions on establishing a complaints mechanism
through an Optional Protocol to the
International Covenant on Economic, Social and Cultural Rights (ICESCR).
A
number of common myths reflect misunderstandings of both the nature of
economic, social and cultural rights and of the role of courts and other bodies
in adjudicating them.
Myth
Adjudicating
ESC rights is not an appropriate or legitimate role for courts or other bodies
since it involves making policy decisions that are properly the function of
democratically elected parliaments.
Reality
Adjudicating
ESC rights claims does not require courts to take over policy making from
governments. Courts have neither the
inclination nor the institutional capacity to do so. Rather, just as in civil and political rights
cases, courts and other bodies adjudicating ESC rights review government
decision-making, to ensure consistency with fundamental human rights. Holding governments accountable to human
rights enhances democracy. It does not undermine it. In reality, a great number of States have
legislation, even at constitutional level that protects ESC rights and
establishes procedures for its protection before the courts of justice or other
state bodies. It has not affected the
competency of the other public powers, although it can have an influence in the
design, implementation and correction of laws and policies that are not in
conformity with the international obligations of the State.
Myth
ESC
rights require governments to ‘give everyone houses’ to comply with the right
to housing or ‘buy everyone expensive medicines’ to comply with the right to
health. Making these rights justiciable
will bankrupt governments.
Reality
Under
the ICESCR, governments have accepted
obligations to progressively realise these rights within their maximum
available resources (Article 2.1). This requires that States only demonstrate
in good faith the fulfillment of the rights over time within their capacities.
Where courts and other bodies have adjudicated ESCR claims, they have shown
considerable deference to governments’ decisions about resource allocation, and
intervened only to ensure that governments take reasonable steps, without
discrimination, and subject to available resources, to respect, protect and
fulfill the rights.
Myth
Courts
or similar bodies are incapable of adjudicating ESCR because these rights are
too vague or complex and involve many different economic and social policies.
Reality
In
a great number of countries, National Courts regularly order remedies for
unjustified interference with or the denying of ESC rights (for example,
dismissal from employment, forced evictions, discrimination in the rights to
education) and have increasingly demonstrated their capacity to contribute to a
best understanding about the reach, nature and extension of these rights,
through their jurisprudence and decisions, and to contribute to the progressive
realization of ESC rights. They play a critical role, especially in protecting
the rights of vulnerable groups or persons who may be overlooked or treated
unfairly in ways which deny them equal enjoyment of economic, social and
cultural rights.
“To carry judicial
deference to the point of accepting Parliament’s view simply on the basis that
the problem is serious and the solution difficult, would be to diminish the
role of the courts in the constitutional process and to weaken the structure of
rights upon which our constitution and our nation is founded.”[23]
Justice
Beverly McLachlin, now Chief Justice of the Supreme Court of Canada
Further Reading
Committee on Economic, Social and Cultural
Rights, General Comment Number 9: The Domestic Implementation of the ICESCR.
Matthew Craven, “The Domestic Application
of the International Covenant on Economic, Social and Cultural Rights’, Netherlands International Law Review, Vol.
XL, 1993, at p.389.
COHRE,
50 Leading Cases on Economic, Social and
Cultural Rights: Summaries, COHRE, Geneva, 2003.<www.cohre.org/litigation>
Toolkit On Government Obligations
The Obligation To Ensure Non-Discrimination & Equality
The duty not
to discriminate in the enjoyment of rights such as the right to work, health,
education, housing etc. is a binding obligation under article 2.2 and 3 of the ICESCR.
Laws and practices that directly or indirectly discriminate against
minorities, women, children and other groups are daily litigated before many
courts. Often, these cases have important implications for government
allocation of resources. (See Example 1) Courts and human rights bodies must
ensure that positive steps are taken so that marginalized and vulnerable groups
have equal access to essential goods and services. (See Example 2)
Example
1: Brown
v. Board of Education (USA)
The Supreme Court held that educational segregation of
Afro-Americans violated the equal protection clause in the Constitution.
Example
2: Eldridge
v. BC (Canada)
The Supreme Court of Canada, after considering cost and
budgetary implications, ruled that the right to equality requires that
governments provide interpretation services for the deaf and hard of hearing in
hospitals and in the provision of health care.
The Obligation To Respect
ESC rights are often taken away from
individuals and communities. (See Example 3)
The duty to respect means governments must ensure that such
interferences only occur when justified and are carried out in the proper way,
with provision of compensation or alternatives where appropriate. Courts or other bodies can monitor this duty
by hearing complaints from individuals and communities.
Example
3: ASK
v Bangladesh
Eviction of slum-dwellers without notice
and without any attempt to find alternative accommodation violates the right to
shelter and livelihood, according to Supreme Court of Bangladesh.
The Obligation To Protect
Private actors, individuals or
corporations, often impede or deny access to ESC rights. Regional human rights bodies have regularly
assessed whether States have complied with their duty to protect individuals
from such violations: see Examples 4 and 5.
Example 4: ICJ v. Portugal
The European
Committee on Social Rights found that Portugal had failed to take sufficient
steps to regulate child labour under the European Social Charter.
Example 5: SERAC v. Nigeria
Nigeria’s failure to prevent Shell from polluting
environment was a breach of their duty to protect the rights to food and health
environment of Ogoni people according to the African Commission on Human and
Peoples’ Rights.
The Obligation To Fulfil
Lastly, courts can play an active role in
monitoring States’ progress in fully realising the rights by hearing complaints
about the failure to make reasonable plans, allocate the necessary and
available resources, and implement and monitor appropriate policies and
programs. They may also require States to define and achieve progressive
benchmarks for the fulfilment of ESC rights.
Example
6: Grootbroom
v South Africa
The Constitutional Court of South
Africa faulted governmental housing programme for failing to provide a
mechanism for emergency relief for those in desperate need –a critical part of
the progressive realization of the right to housing of all South Africans.
Further Reading
Committee on Economic, Social and Cultural
Rights, General Comment Number 9: The Domestic Implementation of the ICESCR.
Matthew Craven, “The Domestic Application
of the International Covenant on Economic, Social and Cultural Rights’, Netherlands International Law Review, Vol.
XL, 1993, at p.389.
COHRE,
50 Leading Cases on Economic, Social and
Cultural Rights: Summaries, COHRE, Geneva, 2003.<www.cohre.org/litigation>
Main Developments In Relation To The
OP-ICESCR
The Work Of The Committee On Economic, Social And Cultural Rights
In
1990 the Committee on Economic, Social, and Cultural Rights started discussing
the possibility of drafting an Optional Protocol to the ICESCR.
Later,
in 1993, the World Conference on Human Rights adopted the Vienna Declaration
and Programme of Action. The Declaration
reaffirmed that “all human rights are universal, indivisible and interdependent
and interrelated” and went on to declare that “the international community must
treat human rights globally in a fair and equal manner, on the same footing, and
with the same emphasis”. Moreover, the
document encouraged “the Commission on Human Rights, in cooperation with the
Committee on Economic, Social and Cultural Rights, to continue the examination
of optional protocols to the International Covenant on Economic, Social and
Cultural Rights”.
By
1996 the Committee on ESCR had finalized a draft Optional Protocol that was
presented for consideration to the Commission on Human Rights in 1997. In its
decision 1997/104 of 3 April 1997 the Commission on Human Rights
requested the Secretary-General to transmit the text of the draft optional to
Governments and intergovernmental and non-governmental organizations for their
comments for submission to the Commission on Human Rights. Only a handful of
Governments submitted their comments.
The Work Of The Independent Expert
In
2001 the Commission on Human Rights decided to nominate an Independent Expert
on the question of a draft Optional Protocol to the ICESCR. Mr. Kotrane, the Independent Expert, submitted
his first report in 2002, declaring himself in favor of the adoption of an
Optional Protocol to the ICESCR. The Commission on Human Rights renewed his
mandate to allow him to study in greater depth the nature and the scope of
States parties obligations under the ICESCR, the question of the justiciability
of ESCR, and finally the question of the benefits and practicability of a
complaint mechanism under the ICESCR and the issue of complementarity between
different mechanisms. The Commission also decided that a working group “with a
view to considering options regarding the elaboration of an optional protocol
to the International Covenant on Economic, Social and Cultural Rights” would be
established in 2003.
In
2003 Mr. Kotrane, submitted his second report recommending that the Commission
adopt a resolution establishing an open-ended working group “with a view to
considering options regarding the elaboration of an optional protocol to the
ICESCR”. In his report, Mr. Kotrane highlighted that there is no longer any
doubt regarding the justiciable nature of ESC rights and that States’
obligations under the ICESCR include each State’s duty to respect, protect and
actively realize ESC rights.
The
Commission on Human Rights decided to establish a working group “with a view to
considering options regarding the elaboration of an optional protocol to the
International Covenant on Economic, Social and Cultural Rights”
The First Meeting Of The Open-Ended Working Group
23 February – 5 March 2004
In
2003, the United Nations Human Rights Commission established an Open-Ended Working
Group with a view to “considering options
regarding the elaboration of an Optional Protocol to the International Covenant
on Economic, Social and Cultural Rights” (the ICESCR).
This
Working Group, chaired by Portugal, met in Geneva from 23 February to
5 March 2004. States, NGOs, international organisations and ESC
rights experts participated in the Working Group discussions.
The
discussions focused on issues such as the nature and scope of States Parties’
obligations under the ICESCR, the justiciability of ESC rights, as well as the
benefits of an Optional Protocol to the ICESCR and its complementarity with
other existing mechanisms. Reference was also made to the international
dimension of ESC rights, as well as to the principle of international
cooperation and technical assistance.
Although
some delegations were strongly in favour of establishing an Optional Protocol
to the ICESCR,[24]
others expressed concern, notably with regard to the justiciability of ESC
rights (both at the national and international levels), the question of
resources, the meaning of “maximum
available resources”, and issues related to the cost of implementing ESC
rights. Another issue raised was that a complaints procedure related to ESC
rights might unduly interfere in the democratic process and national
policy-making with regard to political, economic and budgetary priorities. Some
delegations also questioned whether the Committee on Economic, Social and
Cultural Rights (CESCR) would be competent to receive complaints under an
Optional Protocol without amending the ICESCR.
Those
delegations in favour of an Optional Protocol stressed that a complaints
mechanism would ensure more effective local remedies, promote the development
of international jurisprudence, strengthen international accountability, and
empower vulnerable and marginal groups. Discussion also focused on the question
of which rights should be covered by an Optional Protocol and whether a
comprehensive or an à la carte
approach should be adopted.
NGOs
forming part of the International Coalition for an Optional Protocol to the
ICESCR stressed the need to move towards the adoption of an Optional Protocol,
considered as a valuable tool to redress injustice and provide compensation to
potential victims of ESC rights violations. They also stressed that adjudicating ESC rights claims does not require courts to
take over policy making from governments, that courts regularly order remedies
for the unjustified interference with ESC rights, and that they have
increasingly demonstrated their capacity to monitor the progressive realization
of the rights through the implementation of appropriate programs and policies.
After
two weeks of deliberations, the Working Group adopted a report highlighting the
discussions.[25]
Unfortunately, the United States blocked consensus on the Chair’s
recommendation and conclusions, which included a request for a two‑year
renewal of the working group’s mandate to consider options regarding the
elaboration of an Optional Protocol.
At
its 60th session, the UN Human Rights Commission decided to renew,
for a two years period, the working group’s mandate to “considering options regarding the elaboration of an Optional Protocol
to the International Covenant on Economic, Social and Cultural Rights” (the
ICESCR).
The Second Meeting Of The Open-Ended Working Group
10 – 21 January 2005
In
January 2005, the Working Group met again in Geneva where States, NGOs,
international organisations and ESC rights experts participated in the working
group discussions.
The
discussions focused on issues similar to those outlined above in the
description of the first session.
Overall, the mood in the second Working Group was more positive, with
clearly expressed support for an Optional Protocol from two regional groups –
the Group of Latin American and Caribbean States (GRULAC) and the African
Group. The Working Group’s Report was
adopted by consensus. It included a
request to the Chair to prepare an “elements paper” for the next session, which
would address a wide range of issues to be considered regarding elements of an
Optional Protocol (and including the option of no OP at all).[26]
At
its 61st session, the UN Human Rights Commission welcomed the
adoption of this report, and requested the Working Group to report again at the
62nd session.
Historical Milestones
1990 The Committee on Economic, Social, and
Cultural Rights started discussing the possibility of drafting an Optional
Protocol to the ICESCR.
1993 The World Conference on Human Rights
adopted the Vienna Declaration and Programme of Action (UN document A/Conf.157/23).
The Declaration reaffirmed that “all human rights are universal, indivisible and
interdependent and interrelated” and went on to declare that “the international
community must treat human rights globally in a fair and equal manner, on the
same footing, and with the same emphasis”.
Moreover,
the document encouraged “the Commission on Human Rights, in cooperation with
the Committee on Economic, Social and Cultural Rights, to continue the
examination of optional protocols to the International Covenant on Economic,
Social and Cultural Rights”.
1996
The Committee on ESCR finalized a draft
Optional Protocol that was presented for consideration to the Commission on
Human Rights in 1997 (UN document
E/CN.4/1997/105).
In its decision 1997/104 of 3 April 1997 the Commission on Human
Rights requested the Secretary-General to transmit the text of the draft
optional to Governments and intergovernmental and non-governmental
organizations for their comments for submission to the Commission on Human
Rights. Only a handful of Governments submitted their comments.
2001 The UN High Commissioner for Human Rights
organizes, in cooperation with the International Commission of Jurists, a
two-day workshop on the justiciability of ESCR with particular reference to an
Optional Protocol to the ICESCR (the report on the workshop is contained in UN
document E/CN.4/2001/62/Add.2).
The same year the Commission on Human Rights decided to nominate an Independent
Expert on the question of a draft Optional Protocol to the ICESCR (Commission
on Human Rights resolution
2001/30).
2002 Mr. Kotrane, the Independent Expert,
submitted his first report declaring himself in favor of the adoption of an
Optional Protocol to the ICESCR (UN document E/CN.4/2002/57).
The Commission on Human Rights renewed his mandate to allow him to study in
greater depth the nature and the scope of States parties obligations under the
ICESCR, the question of the justiciability of ESCR, and finally the question of
the benefits and practicability of a complaint mechanism under the ICESCR and
the issue of complementarity between different mechanisms (Commission on Human
Rights resolution
2002/24). The Commission also decided that a working group “with a view to
considering options regarding the elaboration of an optional protocol to the
International Covenant on Economic, Social and Cultural Rights” would be
established in 2003.