What’s been happening at the Open-Ended Working Group for the OP to ICESCR?

 

This is the first of the regular updates we will provide for the duration of the Third Session of the Open-Ended Working Group (OEWG).

Day One: Monday 6 February 2006

Programme for the day

 

The focus of the morning session was the Opening Statements from delegations. The focus of the afternoon session was a debate about the scope of the rights subject to a procedure of communication under an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR)


Themes from the Opening Statements

 

There has been an increased number of States expressing support for an OP-ICESCR  reflecting the increasing interests of the governments on the subject and significant work by NGOs in a number of regions since the last Working Group.

A variety of views were expressed during the opening session, the major political positions being:
• Stronger support to draft the OP
• Ongoing interest in the work of the OEWG

 In terms of substantive concerns two key themes emerged:

 

1. A rejection of the ‘á la carte approach’ (where not all the rights in the Covenant or all levels of obligations [respect, protect, fulfil] would be included in the OP). A great majority of State representatives have expressed their support for a comprehensive approach.

2.  An increasing number of States emphasized the importance they place on international cooperation established under Article 2.1 ICESCR.

3.  Except in the case of a very limited number of States, there have been no questioning that these rights are indeed justiciable.

In the Opening Session the representative of Brazil, on behalf of the GRULAC Group (Group of Latin American and the Caribbean Countries), expressed strong support for a comprehensive OP-ICESCR. This group expressed their wish to go to the next step of commencing with the drafting process. They stressed that the adoption of an OP-ICESCR would provide the same status to all human rights.

In addition, several countries of this Region spoke in support of an OP-ICESCR, such as Ecuador and Chile. Mexico made particularly supportive statements in favour of a comprehensive OP and the value of beginning to elaborate a Draft Optional Protocol.

The representative of Morocco, on behalf of the African Group also expressed support for an OP-ICESCR stressing the importance of the issue of a comprehensive approach, international assistance and cooperation, as well as a requirement for the exhaustion of regional remedies in order not to undermine the developing regional mechanisms.

The EU (represented by Austria) expressed ongoing support for the OEWG, though did not include a statement that the OEWG should begin drafting an OP. In addition, some EU countries like Spain, Belgium, Portugal and Finland expressed their support for drafting an OP. Croatia, as an EU accession country also expressed support for drafting an OP.

There are still some States that strongly opposed to an OP-ICESCR, such as the USA, Poland, Australia  and Japan.   A number of other countries continue to take a predominantly negative view, including Canada, the United Kingdom, the Netherlands, Germany.   Anything domestic NGOs can do to put pressure on these countries will be helpful.

Debate regarding the scope of rights subject to a procedure

The Chair presented two versions of a comprehensive approach to the rights covered under an OP.  

(1) Part I, II and III of the Covenant; and

(2) Part III in conjunction with Part I and II.

The Chair also presented the various "à la carte" approaches including the possibility for states to choose provisions of the ICESCR which should be subject to the procedure under an OP.

There was a noticeable increase in support for the adoption of a comprehensive approach in regard to the rights to be subject to the complaints procedure.   Many State delegates expressed their views in this regard, including the African Group, the Group of Latin American and Carribean States, and other countries such as Belgium, Azerbaijan, Finland, Portugal, Croatia, Spain, Italy, Norway, Greece, Russian Federation.  Egypt was one of the states remarking that version (2) of the comprehensive approach (Part III in conjunction with Part I and II) cannot be considered a comprehensive approach.

Only few States such as Canada, Switzerland and the U.K. expressed their preference for some type of ‘a la carte approach’ also suggesting the idea of limiting the scope to issues of discrimination or minimum core requirements of the rights.  For instance, Canada argued that  the OP  should apply only to Part III “read in conjunction with Part II” and advocated more serious consideration of the option of restricting the OP to only "core rights."   The U.K argued that it might only apply to non-discrimination, as all countries have laws on this.  This was supported by India.   Japan was also outspoken in its opposition to an OP and thus to any comprehensive approach.

Several delegations took the floor for the first time in the afternoon, Chile and France made supportive statements, Poland continued its obstructive role from 2004 questioning the benefits and efficacy of an OP.  

 

NGO activities

The NGO Coalition made an Opening Statement (see web page), calling on governments to move to drafting an OP and identifying the key elements (as per our written submission). Other NGOs made statements calling for drafting, including Amnesty International, FIAN, the International Commission of Jurists, the Centre on Housing Rights and Evictions, the American Association of Jurists, and CETIM.


 

Day Two: Tuesday 7 February 2006

The second day of the session was the occasion to continue discussions on the scope of rights subject to a procedure and the issue of reservations.

The discussion on the scope was directly linked to the issue of reservations and the two discussions proved to be naturally closely interrelated. Indeed, many states (i.a Spain, Azerbaidjan, Sweden) made clear that reservations would be a way to impose an ‘à la carte’ approach through the backdoor.  Sweden and a number of other countries noted that the OP will be a procedural instrument which will not create new rights or obligations, so that reservations would not be appropriate.

The provisions of the Vienna Convention on the Law of treaties on reservations was raised, particularly in reference to the requirements that a reservation be compatible with the aims and objectives of the treaty.

Eibe Riedel, in his capacity as expert, member of the CESCR explained that human rights treaties are by nature different from treaties such as trade agreements where reservations only affect the relation between state A and B and not the well-being of individuals.

The possibility of reservations, however, was defended by several states, such as Morocco, Russian Federation, USA and France as a means to achieve a broad ratification of a future OP.  Other states opposed the inclusion of the option for reservations, including Azerbaijan, Finland, Belgium, Brazil, Spain, Sweden, Norway and Portugal (although Portugal suggested this could be accepted as a compromise).

The NGO Coalition and individual NGOs made it clear that reservations to a procedural instrument such as the optional protocol would be incompatible with the objects and purposes of the Covenant and would indirectly create an ‘a la carte approach’.  As the Human Rights Committee has made clear, permitting the Committee to consider complaints dealing with some rights but not others introduces distinctions with respect to the implementation of certain rights that is incompatible with the broader purposes of the Covenant.

States like UK, France and Belgium considered the possibility to further develop the discussions on reservations when states have more clarity on the approach which will be chosen.

The Netherlands said that it was premature to talk about reservations as they have doubts about the added value of an individual complaints procedure for the Netherlands and would rather favour a collective procedure.

The afternoon session was dedicated to discussions on admissibility criteria such as standing (who can lodge a complaint), subject matter, jurisdiction and time limits.

The Chair presented the admissibility criteria adopted under the various existing communications procedures (to the other human rights treaties). The discussions following this presentation showed that many delegations were in favour of following the practices under existing communications mechanisms.  Intensively debated issues included the proposal by African states, and in particular Egypt, Angola, Ethiopia & Nigeria, to consider the introduction of a new criteria concerning the exhaustion of regional mechanisms.  Egypt argued that this proposal is motivated by the fear of the undermining of regional mechanisms. Serious doubts were expressed both by states and NGOs on the value of introducing this new criteria.  NGOs affirmed the complementarity of regional and international mechanisms, and the need to reinforce regional mechanisms by other means, rather than by imposing an additional hurdle on rights claimants.  Mexico suggested taking advantage of the presentation by the expert of the Inter-American system scheduled for Monday, 13 to further debate the issue.

Canada expressed its opposition to an OP enabling group complaints and stressed the need for a time limit to lodge a complaint after exhaustion of domestic remedies, as well as the need for safeguards to avoid that the CESCR has to review numerous complaints tackling the same problem.  UK and Sweden evoked the possibility of restricting communications to those concerning "gross violations".  The UK expressed that it would be difficult to consider signing up to a Protocol which would provide for international adjudication of rights which are not adjudicated at the national level and that admissibility criteria could also be limited to only violations of core obligations.

A number of delegations supported exceptions to the principles of exhaustion of domestic remedies in case of unduly prolonged processes or in the absence or ineffectiveness of the national remedies.

NGO activities

The NGO Coalition and individual NGOs have made several statements on the various issues and also provided ad hoc responses to arguments expressed by states. The Coalition met with the Chair of the Working Group and discussed possible outcomes of the working group in the perspective of the forthcoming Human Rights Commission.  NGO representatives have also been regularly meeting with delegates to lobby on these issues.