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

 

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

Day Six: Monday 13 February 2006

Programme for the day

 

The focus of the morning session was the Inter-American system. The focus of the afternoon session was the relationship of an Optional Protocol with existing mechanisms.


Themes from Statements

 

In the morning, the Working Group heard a detailed presentation from an expert from the Inter-American system about the experiences of how that system operates, including experiences of ESCR cases before the Inter-American Commission and Court.  Some of the issues raised in the presentation addressed issues relevant to the discussions last week regarding interim measures, follow up procedures etc.  Delegates then had the opportunity to ask questions to the expert, on topics such as the way in which judgments of the Court have implications for resource expenditure, the added benefits of an international mechanism in light of the success of the Inter-American system, international cooperation & assistance, and how to reinforce regional systems such as this in light of an international mechanism (avenues for complementarity).

Monday afternoon’s session was devoted to the relationship of an OP with existing mechanisms.  Experts from ILO, UNESCO & the European Social Charter system spoke about each of their systems, and comments were made regarding how although some ESC rights are dealt with by these other mechanisms, this would not interfere with the ability of an OP-ICESCR to deal with ESCR in a more comprehensive way.  The existing relationship between the CESC and other bodies (such as ILO & UNESCO) and the way in which these bodies communicate and share information was highlighted.  The expert present from the Council of Europe gave a detailed presentation on the European procedures.

Some states explained their view that the European system is not sufficient as it is not comprehensive (Finland, Portugal, France).  Others explained that some criteria could be useful to avoid the duplications which do exist between existing mechanisms (Spain, Norway).  The ILO reiterated the need to ‘keep in touch’ and have a good working relationship in order to ensure consistent interpretation of international obligations.  Many states explained that an OP would not duplicate the work done by existing mechanisms (Mexico, Finland, Portugal, Spain, Argentina) and Brazil explained that there are many aspects of ESCR that are not covered by other bodies.

The representative from UNESCO supported other states talking about complementarity between the procedures, and highlighted the problems with the UNESCO system being confidential.

Canada explained that there are already procedures which render ESCR justiciable, especially discrimination and equality provisions regarding ESCR.  Canada is not sure which instances of discrimination are not covered by other procedures and highlighted that regional mechanisms also provide procedures for complaints (although some gaps do exist here).  In Canada’s opinion, duplication would be reduced with an ‘a la carte procedure’ – that way states that are not concerned about duplication could opt for a comprehensive approach, leaving others more free.   Canada also questioned how would this fit in with Treaty Body reform.

NGO Activities

The NGO Coalition made a statement explaining our view as to why each of the regional, other UN & ILO & UNESCO systems are inadequate and the added benefits of an OP-ICESCR, including how non-duplication could be addressed.

NGO representatives also attended a reception hosted by the Portuguese Ambassador where we lobbied hard to ensure that many state delegates would attend the session on Tuesday afternoon and make strong statements calling for the drafting of a comprehensive Optional Protocol.

Day Seven: Tuesday 14 February 2006

Programme for the day

 

The focus of the morning session was on the benefits of an Optional Protocol in terms of improving the implementation of ESCR at the national level. The afternoon session was devoted to statements on the Options for an Optional Protocol.

Themes from Statements

The session began with a detailed overview from the Chair of the case law mentioned in the Elements Paper, highlighting how these have contributed to changes in legislation, policies or administrative measures for a better implementation of ESCR.

The first statements regarding the benefits of an Optional Protocol was made by the French Ambassador, who amongst other points raised the possibility of an OP having a confidential phase (like the UNESCO procedure) and a second public phase which could resemble the OECD model of communications/complaints (i.e. the OECD Guidelines on Multinationals).

Finland made a statement about how the OP would improve the implementation of ESC rights at the national level and how an OP would result in governments taking these rights more seriously.

Germany explained that while individual communications procedures are a suitable way of promoting human rights they still require some further clarity on how to progress with this mechanism given the number of divergent opinions expressed throughout the working group.  They are concerned for the need to progress negotiations on a solid basis with much clarity.  On the topic of the benefits of an Optional Protocol (and its impact at the national level) Germany pointed to the potential ‘multiplier effect’ that such a mechanism would have upon implementation at the national level.

Portugal made a strong statement regarding the many benefits for national level implementation and how an OP would lead to increased attention for ESCR at the national level.  Amongst other things they highlighted the positive experience they had with adjudication of ESCR complaints through the example of the ICJ v Portugal case.

Mexico also supported the important impact that the Protocol could have at the national level, and explained how in its view there was no point in reaching a consensus without a text in front of us.

Statements were made on the Options for an Optional Protocol by a large number of states and in this session it was notable that many Ambassadors attended to show their government’s strong support for a drafting mandate.

Statements that were made by states throughout the afternoon and in the continuation of the session the following morning can be generally categorised as follows:

(1) states that expressed outright lack of support for the WG (Australia, Poland & USA);

(2a) states who in general agreed with a proposal being put forward by the UK & Canada, because they still support the consideration of the option of no optional protocol (detailed below, including the Netherlands, Japan, Sweden, South Korea, );

(2b) states who in general agreed with the proposals being put forward by the UK & Canada because they are concerned to seek the greatest possible consensus of states and to ensure consideration of the areas that are of concern to them (detailed below, including Luxembourg, the Philippines, New Zealand, China, Greece, Norway, Germany, Romania);

(3) states who expressed support for the renewal and extension of the working group’s mandate to begin drafting a (comprehensive) optional protocol (detailed below, including Morocco on behalf of the African Group, Brazil on behalf of the GRULAC, Argentina, Portugal, Nigeria, Bolivia, Ecuador, Slovenia, Azerbaijan, Congo, Russian Federation, Belgium, France, Iran, Burkina Faso, Italy, Mozambique, Croatia, Ethiopia, Panama, South Africa, Ghana, Mexico, Madagascar, Cuba, Timor Lest, Egypt, Finland, Chile, Guatemala, Spain, Venezuela, Costa Rica, Lesotho, Senegal, Turkey, Angola).  Many of the states falling into category (3) also called for a draft text to be elaborated by the Chair: Morocco on behalf of the African Group, Brazil on behalf of the GRULAC, Argentina, Portugal, Nigeria, Azerbaijan, Russian Federation, Croatia, Panama, South Africa, Ghana, Mexico, Cuba, Timor Lest, Egypt, Finland, Chile, Spain, Costa Rica, Angola).

The UK and Canada still have concerns regarding certain issues (allocation of resources, margin of appreciation, existence of judicial remedies at the national level, how would the Committee review complaints) but they do not want to block the process. As such, they proposed an alternative way of moving forward to the proposal that the Chair elaborates a draft for the next Working Group. Their proposal was that the work proceeds on the basis of reflecting the different views of many States, as well as the various approaches outlined in the elements paper regarding the scope of rights to be subject to a complaints and inquiry procedure. They suggested a working document containing textual elements rather than the presentation of a draft text. Canada stressed the importance of consensus in order to render the instrument as universal as possible and supported the idea of a draft paper containing some options for elements of a Protocol.

NGO activities

The NGO Coalition and other NGOs made statements on the benefits of an Optional Protocol and spoke with many states about the need to make strong statements in support of a comprehensive drafting mandate.

 

Day Eight: Wednesday 15 February 2006

Programme for the day

The focus of the morning session was continuing the speakers list from Tuesday regarding the Options for an Optional Protocol. There was no afternoon session as the time was devoted to the drafting of the report.

Themes from statements

Switzerland outlined the various possibilities (the UK and Canada proposal, giving the chair a clear mandate to draft) without committing itself to any.

Both the UK and Canada responded to the NGO Coalition statement, explaining that what they were proposing was still the commencement of drafting and that in their view the “no optional protocol option” was not part of what they were proposing.

NGO activities

The NGO Coalition and other NGOs (Franciscans International, Amnesty International, the ICJ, COHRE, FIAN, ESCR-Net, OMCT, the Plataforma) made statements on the Options for an Optional Protocol (see the compilation of statements which will be circulated soon).   The NGO Coalition members held informal consultations with a number of states regarding proposals being circulated by Canada & the UK regarding proposed wording for a recommendation for the renewal of the mandate which they hope can be adopted by the Working Group, or by the Chair if no consensus can be found in the Working Group.  The NGO Coalition does not support the proposed wording as it is too restrictive and does not, in opinion, 100% support a good drafting mandate.  NGO representatives also spent time discussing this proposal (including via telephone) with other delegates, including diplomats from the African Group, GRULAC and some European states.

The NGO Coalition held a meeting in the afternoon to discuss the future structure and activities of the NGO Coalition as well as the strategies for lobbying on current pressing challenges to the Working Group.  Minutes of this meeting will be circulated separately.