Second Open-Ended Working Group to Consider Options Regarding the Elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

10-21 January 2005

Statement by IWRAW Asia Pacific on

Parts I, II, III of the ICESCR and Elements of an OP-ICESCR

January 14, 2005

IWRAW Asia Pacific joins with States and other Non-Governmental Organisations who have expressed support for the elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights which contains an individual complaints procedure and an inquiry procedure which would relate to all the rights set forth in the Covenant.

Although the discussion today focuses on Part II of the Covenant, our statement in relation to the Optional Protocol, will inevitably make reference to Parts I and III. As it has already be pointed out by others, any attempt to apply the Covenant to actual situations is strengthened when seeing it as a holistic document that cannot be divided, especially, when considering options and elements for an OP-ICESCR.

We will take this opportunity to discuss the ways substantive areas of the Covenant can relate to procedural elements that would have to be taken into account when drafting an Optional Protocol:

4.      In relation to Article I of the International Covenant on Economic, Social and Cultural Rights, an important dimension of the right to self-determination is that it is impossible to justify violations of ESCR by the State on the ground that a group may be in conflict with the State, because of a political claim to self-determination. For example, at minimum, a government policy or practice that results in the denial of access to and availability of basic health services and primary education to communities seeking self-determination would clearly be discriminatory and as such, violate substantive rights contained in the Covenant. In such situations, groups seeking self-determination and targeted for violations of ESCR on that ground, should be able to submit collective complaints under the OP-ICESCR.

From the perspective of individuals and groups that are targeted and discriminated against because of their economic, social or cultural status, the OP-ICESCR must ensure protection and an opportunity for seeking redress. Moreover, it is because of this reason that groups and individuals that allege that they have been victims of violations of ESCR must be accorded standing under the Optional Protocol.

2. In regard to the question of international cooperation and assistance under the Covenant, we support the delegations that have begun to consider the ways this issue may relate to modalities and elements of the procedures that would be established under the OP-ICESCR. In our view, the obligation to use resources allocated and received from international assistance in ways that further the domestic implementation and realisation of the rights and principles set forth in the Covenant is an obligation that extends to both, donor and recipient States.

5.      Part II of the Covenant is extremely critical to the discussion on violations of ESCR that should be addressed under an Optional Protocol. Articles 2.2 and 3 relate to the principle of Non-discrimination and should continue to be seen as inherently linked to the notion of substantive equality -which has now been referred to by the Committee in draft GC 16 on Article 3. The notion of substantive equality is a useful means to ensure that all individuals belonging to communities or groups that are disadvantaged are guaranteed equal opportunity, equal access to opportunity and equal benefits from the results of laws, policies and programmes aimed at creating an enabling environment for their human, social and economic development. In this regard, we submit that equality and non-discrimination are some of the cross-cutting principles that should inform the development of elements of the procedures under the OP-ICESCR as they would relate to all rights contained in Part III.

It is also important to note that although the principle of non-discrimination is contained in most human rights treaties, in our view, the ICESCR provides more room for addressing situations of intersectional discrimination. For example, although CERD and CEDAW refer to racism and gender as main grounds of discrimination, the ICESCR gives us room to analyse the compounded affects of one or more forms of discrimination, and explore different constructions of inequality as they specifically relate say, to poverty and health status.

In relation to the process of drafting the Optional Protocol, the exercise of exploring means and ways to establish an effective mechanism of “last resort” at the international level is likely to give further momentum to on-going discussions on legal and non-legal remedies for violations of economic, social and cultural rights already taking place at the national level. In this regard, the admisibility criteria for individual complaints under the OP-ICESCR is one of the key discussions that would enable national mechanisms for the protection of human rights to carry out a constructive review of the efficiency and impact of existing remedies in the context of ESCR violations.

In relation to Article 2.3, our position is that, at minimum, alleged victims of violations of the core rights set forth in the Covenant that are “under the jurisdiction” of a State Party should be able to bring individual complaints under the OP-ICESCR.

4.      In relation to Part III, we want to re-emphasise that in our view, the OP-ICESCR should enable the protection and redress to the victims of violations of any of the rights contained in the Covenant. In this regard, we support the view that when analysing and applying the Covenant to specific violations it is impossible to separate levels of state obligation.

5.      In order to ensure that the Optional Protocol is an effective mechanism, with capacity to provide redress for violations of human rights articulated in Parts I, II and III of the Covenant, the following elements must be considered:

·        Extensive protection to the alleged victims/claimants: Taking into account that the majority of the victims of ESCR violations are already in a position of disadvantage and as such are many times, vulnerable to further abuse, the individual complaints mechanisms under the OP-ICESCR should ensure that alleged victims/claimants are not ill treated or intimated as a consequence of seeking redress at the international level. For example: A situation in which an individual complaint is submitted by a small indigenous community, whose members, as a direct result of the complaint, have been threatened by the local police and now fear communal attacks might instigated against them.

·        Interim measures: Since the nature of many of the violations of ESCR is repetitive and continuous, it is important to consider the need for the explicit inclusion of interim measures aimed at avoiding irreparable harm to alleged victims/claimants. For example: if there is a complaint on behalf of patients in a mental health institution in which most are in a critical stage if malnourishment, the Committee should be able to recommend measures aimed at preventing patients from dying from hunger.

·        Grave and/or systematic violations: The Optional Protocol should enable the Committee to investigate violations of rights under the Covenant which are grave and/or systematic. For example: if the Committee receives information from Special Rapporteurs and other reliable sources alleging that in State x, a local company is polluting the water of a community in order to evict them. 

·        The “No Reservations” clause: Given the “optional” nature of the Protocol, no reservations should be permitted to it, as not only will it reduce from the international legal standard set by the OP to CEDAW and other Optional Protocols, but also fragment the inter-relatedness of rights, which must be accepted in totality. Also, in practice, it is impossible to separate violations right-by-right for example, a violation of the right to health may also link to violations of other rights that relate to determinants of health such as the right to water, the right to food, freedom from violence, etc.

·        Remedies: The types of remedies that could be recommended by the Committee under the inquiry and communications procedures under the OP-ICESCR should be discussed at length. This discussion is likely to enable the working group to develop a more clear position and understanding of the quasi-judicial nature of the procedures.