Leuven Statement on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

On 30 November 2001 an expert seminar on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights was held in Leuven, Belgium. It was organised by the Institute for Human Rights of the Faculty of Law, Catholic University of Leuven, on the initiative of 11.11.11, Coalition of the Flemish North South Movement. On that occasion, the following conclusions were adopted.

1.      The participants to the seminar urge the United Nations Commission on Human Rights to give high priority to the consideration of a draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. They encourage the effective start of the drafting process of that Optional Protocol at the earliest possible moment.

2.      The participants endorse in principle the draft Optional Protocol as proposed by the Committee on Economic, Social and Cultural Rights in 1996[1]. In particular, they express support for:

a)      the “violations” approach;

b)      the liberal rules of locus standi, allowing both individuals and groups to lodge a complaint;

c)      the inclusive or comprehensive approach as far as the range of rights covered is concerned;

d)      the possibility for the Committee to request States Parties to take interim measures;

e)      the possibility for the Committee to take into account information obtained from other sources than the author of the communication or the State concerned, provided that this information is transmitted to the parties concerned for comment;

f)        the possibility for the Committee to make the recommendations it considers appropriate.

3.      On a number of specific issues, the participants would like to suggest amendments to the said draft Optional Protocol. These amendments take as a starting point the international consensus reached in the meantime on the occasion of the adoption in 1999 of the Optional Protocol to the Convention on the Elimination of Discrimination against Women[2]. The suggested amendments are the following:

a)      concerning the submission of a complaint by a third party, to add to Article 2 § 1 the following sentence: “Where a communication is submitted on behalf of individuals or groups of individuals, this shall be with their consent, unless the author can justify acting on their behalf without such consent.”[3]

b)      concerning the exhaustion of domestic remedies as an admissibility requirement, to insert in Article 3 § 3 (a), after the words “that all available domestic remedies have been exhausted”, the words: “unless the application of such remedies is unreasonably prolonged or unlikely to bring effective relief.”[4]

c)      concerning the possibility to request interim measures, to replace the text of Article 5 with the following:

“1. At any time after the receipt of a communication and before a determination on the merits has been reached, the Committee may transmit to the State Party concerned a request that the State Party take such interim measures as may be necessary to avoid possible irreparable damage to the victim or victims of the alleged violation.

2. Where the Committee exercises its discretion under paragraph 1 of the present article, this does not imply a determination on the admissibility or on the merits of the communication.”[5]

d)      concerning the need to obtain the consent of the author of a complaint for disclosure of his or her identity, to add to Article 6 § 1 the following sentence: “The Committee shall disclose the identity of the author of the communication only when the author has consented to such disclosure”.[6]

e)      concerning the possibility of an inquiry procedure, to insert the Articles 9bis and 9ter, reading:

“Article 9bis

1. If the Committee receives reliable information indicating grave or systematic violations by a State Party of rights set forth in the Covenant, the Committee shall invite that State Party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned.

2. Taking into account any observations that may have been submitted by the State Party concerned as well as any other reliable information available to it, the Committee may designate one or more of its members to conduct an inquiry and to report urgently to the Committee. Where warranted and with the consent of the State Party, the inquiry may include a visit to its territory.

3. After examining the findings of such an inquiry, the Committee shall transmit these findings to the State Party concerned together with any comments and recommendations.

4. The State Party concerned shall, within six months of receiving the findings, comments and recommendations transmitted by the Committee, submit its observations to the Committee.

5. Such an inquiry shall be conducted confidentially and the cooperation of the State Party shall be sought at all stages of the proceedings.

Article 9ter

1. The Committee may invite the State Party concerned to include in its report under Article 16 of the Covenant details of any measures taken in response to an inquiry conducted under article 9bis of the present Protocol.

2. The Committee may, if necessary, after the end of the period of six months referred to in Article 9bis § 4, invite the State Party concerned to inform it of the measures taken in response to such an inquiry.”[7]

f)        concerning the prohibition of reservations to the Protocol, to include an Article 14bis, reading as follows:

No reservations to the present Protocol shall be permitted.”[8]