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

 

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

Day Three: Wednesday 8 February 2006

Programme for the day

 

The focus of the morning session was the communication procedure under an Optional Protocol: proceedings on the merits, friendly settlement of disputes, interim measures, views and follow up to views. The focus of the afternoon session was on inquiry procedures.


Themes from Statements

 

In general, states felt that communication procedures under the OP- ICESCR should conform with existing procedures under other complaints mechanisms.  It was felt that it is not necessary to innovate.  Some delegates, however, considered that individuals could be present to provide oral testimony. 

With respect to friendly settlement, it was emphasized by most delegates that this is already a principle of international law and thus there is no need to establish the process in the optional process.  Many states noted that caution would need to be exercised to ensure that settlements were in compliance with the Covenant. 

With respect to interim measures there was less consensus.  Some delegates agreed that interim measures were important in urgent cases, while others felt that there would need to be clear restrictions as to when such measures may be appropriate.  Others felt that specific rules are needed for ESC rights.  There was some debate about whether the authority to impose interim measures needs to be specified, given that other treaty monitoring bodies have adopted the practice without it being mentioned in the text of the complaints procedure.

In the afternoon, in discussions of inquiry and interstate procedures, there was considerable debate on the definition of “reliable information” on which the Committee would base its decision to initiate an inquiry procedure.  It was also expressed that the concept of “grave and systematic violations” may not be clear enough to predict when the Committee might apply this procedure.  Others felt that we should not try to reinvent the wheel and simply apply the same terms and model as is applied in the Optional Protocols of CAT and CEDAW.   Some countries expressed concern about the expense of an inquiry procedure, while many others expressed support for this mechanism as it might serve to prevent ESCR violations (e.g. Mexico and Finland). Several views were expressed as to whether to include the possibility to op-in or opt-out of the procedure at any time. No agreement was reached about this issue.

In general, among the States which expressed their full support for an inquiry procedure were Azerbaijan, Finland, Chile, Portugal and Mexico. Some other States such as Argentina and Spain argued that the issue should be subject to further analysis in their countries although they are in principle supportive to the inclusion of such mechanism. 

Some other States raises additional concerns about an inquiry procedure. For example, Belgium expressed some skepticism and stated that Belgium would prioritize a complaints procedure. The delegate from the United Kingdom stated that their position is still not definitive. However, they raised concern about the cost of the country visits established under the inquiry procedure. He asked if these visits will be paid by the Secretariat or by countries. He also stressed that they are not confident that a drafting process for the OP can be initiated. He considered that more discussion is needed on the element paper.

The Egyptian delegate raised several concerns about the procedure. He asked, for example, what it meant by “reliable information” and by “grave and systematic violations”. Angola and Nigeria also expressed their views against this mechanism

NGO Activities

The NGO coalition and other NGOs argued that an investigative procedure is an important component of an OP which allows the Committee to investigate grave and systematic violations while respecting the sovereignty of states.

There was no debate regarding inter-state complaints procedures as no one had comments to make on this issue.  

Day Four: Thursday 9 February 2006

Programme for the day

 

The focus of the morning session was international cooperation and assistance. The afternoon session was cancelled.

Themes from Statements

In general, some States reiterated that they bear responsibility to respect human rights and that international cooperation is central to comply with this responsibility. Some States stressed that international cooperation establishes “legal” obligations while others (such as Canada) emphasised the non-legal nature of any duty of international cooperation and assistance. It was emphasized that the provisions in article 2.1 of the ICESCR were central to this treaty and that the obligation to use the maximum of available resources includes national resources as well as those resources available through international assistance and cooperation. A delegation mentioned that reference to international cooperation applied to all states and not to specific ones.  It was stressed that international cooperation is not and should not be a precondition for the implementation of the Covenant.  Some delegates pointed to the practices of the Committee on the Rights of the Child and favaoured including that approach in an Optional Protocol to the ICESCR. A proposal was made to create a fund to implement recommendation of the Committee in relation to individual communications. Other States rejected this proposal.              

Some States, such as Sweden and The Netherlands emphasised their commitments to international assistance although they raised concerned about the inclusion of such obligations under the OP.

France provided information on the meeting which took place in Nantes in July 2005 and the discussions there about the issue of international cooperation and assistance.  The United Kingdom continued raising concerns about the OP in general and the possibility of submitting complaints regarding international assistance and cooperation.  The delegate for the U.K. questioned the ability of the Committee members to provide advice in regard to provisions regarding International assistance.

The delegate of Finland stressed that international assistance should be used to comply with the Covenant. In this regard, she noted the importance of a human rights based approach to development and that consultation between development agencies and Committee members would be extremely useful.

The delegate of the Netherlands reiterated the commitments of his country to international assistance. Nonetheless, he considered that a complaint mechanism is not the way to deal with international cooperation. He stressed that they are not in favour of any duplication of procedures.

The delegate of Morocco on behalf of the African Group submitted the proposal to create an international fund to implement the decisions of the Committee under individual complaints. He emphasised that international cooperation was a key component of the Covenant, a central obligation for all States party to the treaty. He recalled General Comments No. 2 and 3. He stressed that this fund would be essential to comply with the views of the Committee.

Several countries from the region supported the idea of the fund. These included Egypt, Nigeria, Angola, South Africa, Ethiopia, Ghana, and Senegal. Some other countries also supported the creation of such a fund, i.e. Indonesia and Iran.

Switzerland noted that the Committee would be able to do more in regard to international assistance so the inclusion of these obligations under an Optional Protocol would not be necessary.

Portugal stressed that it is particularly important that the issue of international cooperation is addressed in a non-confrontational manner, suggesting that we should give priority to articles 22 and 23 ICESCR. They expressed support to include a provision similar to article 44 of the Convention of the Rights of the Child.  It was noted that the Committee could, for example, receive the power to invite international agencies to provide assistance, recommend the GA to make studies on issues related to ESCR and to transmit the Secretary General its views.

NGO activities

The NGO Coalition made statements for each of the topics included in the programmes (see web page).

 

Day Five: Friday 10 February 2006

Programme for the day

The focus of the morning and afternoon sessions was the topic of “An optional protocol and domestic decisions on resource allocation”.

Themes from statements

Several States stressed that the implementation of all human rights (civil and political as well as economic, social and cultural) require the allocation of resources.  Thus, there will be no significant difference in the cost of implementation of both sets of rights.  However, some other States suggested that the obligation to respect and protect ESCR will not imply allocation of resources while the obligation to fulfill will have significant financial implications. 

Poland continued to raise obstructive positions in relation to the optional protocol. 

Greece stressed that it is of paramount importance to respect the margin of discretion of the States and the Committee should take this into account while interpreting the level of fulfilment of State Parties. The delegate also argued that in cases of discrimination the threshold could be lower.

The delegation of Mexico stressed that an Optional Protocol will aid the objectives of democratic states, giving an opportunity to vulnerable groups in society.  While it is true that the Committee is not the organ with more knowledge on each particular State, it is also true that they have great experience analysing the obligations of State Parties to the ICESCR and could provide a guide for a better use of resources. 

Germany stated that the compliance of the obligation to respect and protect will not present any problem, but it is necessary to be clear on how the Committee will deal with the obligation to fulfil ESCR.

Portugal stressed that there has been an agreement that the complaint mechanism will only be available after exhaustion of all domestic remedies, therefore the number of cases that will reach the Committee in reality will be very small. Of this small amount of cases many will not have resources implications so the issue, according to this delegation does not present a problem. 

The delegation of the United Kingdom suggested that the obligation to fulfil should be left out of the reach of an Optional Protocol. He pointed to the disconnect between the national and the international arena. The delegation expressed that while national courts are constrained by a clear balance of power and by a clear appreciation of the reality of the situations faced at the national levels, the Committee was not and thus had a very wide discretion to enter into questions of macroeconomic policy.  He gave as an example the fact that the Committee had asked countries, while analysing State’s reports, whether it was advisable to continue to cover their debt instead of increasing the standard of living of their population.   He stressed the importance of including guarantees regarding the application of the principle of margin of discretion and reasonableness (this was supported by other states).                                   

Canada stated that the allocation of resources cannot be underestimated and that there are fundamental differences between civil and political and economic, social and cultural rights.  They raised a question on how an international treaty body will be able to assess the difficulties that a government needs to take into account while deciding how to comply with their ESCR obligations.  The delegation added that some complaints might have impact on only one or two people, while others might have impact on thousands and asked how will the committee be able to examine the available resources in these cases.  They argued that the margin of appreciation needs to be established in the Optional Protocol.

A number of states, including the U.K., noted that one way to give direction to the Committee would be to provide for a criterion of “reasonableness” in the allocation of resources, as was used by the South African Constitutional Court in the Grootboom case.

A large number of NGOs responded on these issues, arguing that the experience in domestic courts and in other treaty monitoring bodies showed that issues of resource allocation were addressed sensitively so as to respect the competence of governments in this area.  It was also stressed that there were resource implications to all obligations under the Covenant, and that any attempt to restrict the role of the Committee with respect to this aspect would mean that complaints from the most disadvantaged groups and individuals would not be addressed.