Report from the First Session of the Open-Ended Working Group to consider options for an Optional Protocol to ICESCR (2004) E/CN.4/2004/44
COMMISSION ON HUMAN RIGHTS
Sixtieth session
Item 10 of the provisional agenda
ECONOMIC, SOCIAL AND CULTURAL RIGHTS
(Geneva, 23 February-5 March 2004)
Chairperson-Rapporteur: Ms. Catarina de Albuquerque (Portugal)
GE.04-12029 (E) 190304
Introduction
1. In paragraph 75 of its Declaration and Programme of Action, the World Conference on
Human Rights, held in Vienna in 1993, encouraged “the Commission on Human Rights, in
cooperation with the Committee on Economic, Social and Cultural Rights, to continue the
examination of optional protocols to the International Covenant on Economic, Social and
Cultural Rights”.
2. In 2003, the Commission on Human Rights, in paragraph 12 of its resolution 2003/18,
recalled Economic and Social Council decision 2002/254 of 25 July 2002, in which the Council
“endorsed the decision of the Commission to establish an open-ended working group with a view
to considering options regarding the elaboration of an optional protocol to the International
Covenant on Economic, Social and Cultural Rights”.
3. The Commission requested the working group, in paragraph 13 of the same resolution,
“to meet for a period of ten working days, prior to the sixtieth session of the Commission, with a
view to considering options regarding the elaboration of an optional protocol, in the light,
inter alia, of the report of the Committee on Economic, Social and Cultural Rights to the
Commission on a draft optional protocol for the consideration of communications in relation to
the Covenant (E/CN.4/1997/105, annex), comments and views submitted by States,
intergovernmental organizations, including United Nations specialized agencies, and
non-governmental organizations, and the reports of the independent expert (E/CN.4/2002/57
and E/CN.4/2003/53 and Corr.1 and 2)”. In paragraph 16 of the resolution, the Commission
requested the working group “to report to the Commission on Human Rights at its
sixtieth session and to make specific recommendations on its course of action concerning
the question of an optional protocol to the International Covenant on Economic, Social and
Cultural Rights”.
4. The present report is submitted to the Commission by the Chairperson-Rapporteur. The
summary of proceedings in sections I-VII was adopted by consensus (ad referendum) by the
Working Group at its final meeting on 5 March. The recommendations included in section VIII
are the sole responsibility of the Chairperson-Rapporteur.
I. ORGANIZATION OF THE SESSION
A. Opening of the session and election of the Chairperson-Rapporteur
5. The session of the open-ended working group was opened by a representative of the
Office of the United Nations High Commissioner for Human Rights (OHCHR). He welcomed
the convening of the working group and provided a brief overview of its antecedents and of
recent developments relevant to the deliberations of the working group, including two expert
seminars on an optional protocol to the International Covenant on Economic, Social and Cultural
Rights (ICESCR) held in 2003 in Berlin and Dubrovnik. He informed the working group that,
on the basis of the proposed timetable for the session discussed by State delegations at an
informal consultation meeting on 22 January 2004, OHCHR had organized two expert panels in
the context of the working group with members of human rights treaty monitoring bodies and
Special Rapporteurs and expressed thanks to these experts for having made themselves available
to the working group.
6. At its first meeting, the working group elected by acclamation
Ms. Catarina de Albuquerque (Portugal) as its Chairperson-Rapporteur.
B. Participation
7. Representatives of the following States members of the Commission on Human Rights
attended the meetings of the working group, which were open to all members of the
Commission: Argentina, Austria, Australia, Brazil, Burkina Faso, Chile, China, Congo,
Costa Rica, Croatia, Cuba, Dominican Republic, Egypt, Ethiopia, France, Germany, Guatemala,
Hungary, India, Indonesia, Ireland, Italy, Japan, Mexico, Nepal, Netherlands, Nigeria, Paraguay,
Peru, Republic of Korea, Russian Federation, Saudi Arabia, South Africa, Sweden, Togo,
United Kingdom of Great Britain and Northern Ireland, and United States of America.
8. The following States, non-members of the Commission, were represented at the
meetings of the working group: Albania, Algeria, Andorra, Angola, Bangladesh, Belarus,
Belgium, Bolivia, Bosnia and Herzegovina, Bulgaria, Canada, Cyprus, Czech Republic,
Democratic People’s Republic of Korea, Ecuador, El Salvador, Estonia, Finland, Greece, Haiti,
Iran (Islamic Republic of), Israel, Kazakhstan, Latvia, Libyan Arab Jamahiriya, Lithuania,
Luxembourg, Madagascar, Malaysia, Malta, Mauritius, New Zealand, Nicaragua, Norway,
Poland, Portugal, Romania, Senegal, Serbia and Montenegro, Slovakia, Spain, Switzerland,
Syrian Arab Republic, Tunisia, Turkey, Uruguay and Venezuela.
9. The following non-member States of the United Nations were represented by observers:
Holy See.
10. The following United Nations organizations, bodies, programmes and specialized
agencies were represented at the meetings of the working group: International Labour
Organization (ILO), United Nations Conference on Trade and Development (UNCTAD),
United Nations Educational, Scientific and Cultural Organization (UNESCO), United Nations
Joint Programme on HIV/AIDS (UNAIDS), World Food Programme (WFP) and World Health
Organization (WHO).
11. The following intergovernmental organization was represented at the meetings of the
working group: League of Arab States.
12. The following non-governmental organizations (NGOs) in general consultative status,
special consultative status, and on the roster with the Economic and Social Council were
represented: Amnesty International, Association of World Citizens, Center for Economic and
Social Rights, Centre on Housing Rights and Evictions, Europe-Third World Centre,
FIAN-Foodfirst Information and Action Network, International Commission of Jurists,
International Women’s Rights Action Watch, International Organisation for Development and
Freedom of Education, New Humanity and Tupaj Amaru, World Organization Against Torture.
13. On 24 February 2004, Paul Hunt, Special Rapporteur on the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health (Special Rapporteur
on the right to health), and Miloon Kothari, Special Rapporteur on adequate housing as a
component of the right to an adequate standard of living (Special Rapporteur on adequate
housing), addressed and engaged in an interactive dialogue with the working group. Eibe Riedel,
member of the Committee on Economic, Social and Cultural Rights (CESCR), Martin Scheinin,
member of the Human Rights Committee (HRC), and Régis de Gouttes, member of the
Committee on the Elimination of Racial Discrimination (CERD), also took part in an interactive
dialogue with the working group on 25 February 2004.
C. Documentation and organization of work
14. The working group had before it the following documents:
E/CN.4/2004/WG.23/1 Provisional agenda
E/CN.4/2004/WG.23/2 Report of the Secretary-General in response to
resolution 2003/18 of the Commission on
Human Rights
E/CN.4/2004/WG.23/CRP.1 Background paper prepared by the secretariat:
Selection of case law on economic, social and
cultural rights
E/CN.4/2004/WG.23/ CRP.2 Information provided by the Government of
Croatia: Report of the International Conference
on Economic, Social and Cultural Rights,
2-4 September 2003, Cavtat-Dubrovnik, Croatia
E/CN.4/2004/WG.23/ CRP.3 Joint submission by non-governmental
organizations, human rights institutions and
civil society groups
E/CN.4/2004/WG.23/ CRP.4 Information provided by the Special Rapporteur
on the right to education
E/CN.4/2004/WG.23/ CRP.5 Communication écrite du Centre Europe-Tiers
Monde et de l’Association américaine de
juristes
E/CN.4/2004/WG.23/ CRP.6 Joint written statement by the Europe-Third
World Centre and the American Association of
Jurists
E/CN.4/2004/WG.23/ CRP.7 Information provided by the Special Rapporteur
on the right to food
E/CN.4/2003/53 Report by the independent expert to examine
the question of a draft optional protocol to the
International Covenant on Economic, Social
and Cultural Rights
E/CN.4/2002/57 Report by the independent expert to examine
the question of a draft optional protocol to the
International Covenant on Economic, Social
and Cultural Rights
E/CN.4/1997/105 Draft optional protocol to the International
Covenant on Economic, Social and Cultural
Rights
15. At its first meeting, the working group adopted its agenda, as contained in document
E/CN.4/2004/WG.23/1.
16. The Chairperson-Rapporteur underlined the importance of the task before the
open-ended working group and encouraged all participants, including intergovernmental and
non-governmental organizations to participate actively in the discussions. She went through
the draft work plan and timetable which was endorsed by the working group.
II. OPENING STATEMENTS
17. At its first meeting, on 23 February 2004, States delegations and representatives of
intergovernmental and non-governmental organizations made opening statements expressing
their preliminary views on options regarding the elaboration of an optional protocol to the
International Covenant on Economic, Social and Cultural Rights and on the key issues to be
addressed by the working group. Participants welcomed the convening of the working group,
which was seen as an important step to strengthen the implementation of economic, social and
cultural rights.
18. Some delegations referred to the reaffirmation at the 1993 World Conference on
Human Rights in Vienna that all human rights are universal, indivisible and interdependent and
interrelated. They said this was the natural starting point for the working group’s deliberations.
However, other delegations expressed different views as to the implications of these principles.
Some delegations regretted the fact that, despite the international community’s consensus on the
universality and indivisibility of all human rights, it still did not give economic, social and
cultural rights the same priority as civil and political rights. According to this view, the
elaboration of an optional protocol would be a step towards rectifying this imbalance. Attention
was drawn to the fact that, with the exception of the Convention on the Rights of the Child,
optional complaints procedures had been established under all of the other main international
human rights treaties. The opinion was also expressed that civil and political rights become
solitary and meaningless without the realization of economic, social and cultural rights.
19. Other delegations maintained that the principle of indivisibility and interrelatedness of all
human rights did not mean that the implementation of all human rights was alike. In particular,
some delegations stated that the rights contained in the ICESCR were not as clearly defined as
compared to those contained in the International Covenant on Civil and Political Rights
(ICCPR). Similarly, some delegations suggested that most of the rights contained in the
ICESCR were not absolute and were insufficiently precise to establish clear obligations, and that
a complaints procedure would consequently be impracticable. Some delegations noted that it is
difficult for an adjudicatory body to determine whether an economic, social and cultural right has
been violated because a large margin of discretion is left to States parties to make policy
decisions. A number of delegations underlined that the matter required further careful study and
analysis, particularly with regard to the nature of States parties’ obligations and the criteria
which would be used to determine whether a violation had occurred.
20. Some delegations believed that the provisions of the Covenant were insufficiently clear
to lend themselves to a complaints procedure or to be justiciable. Other delegations referred to
national and regional legislation and case law, arguing that experience shows that the vagueness
of legal provisions of the Covenant can be clarified by courts. Some delegations stated that
action by the legislature is sometimes necessary in order to clarify the scope of obligations.
Several delegations underlined that States parties have an immediate obligation to take prompt
and effective measures towards the implementation of the rights covered by the Covenant.
21. A number of delegations referred to the international dimension of economic, social and
cultural rights and the duty of international cooperation and technical assistance. It was
suggested that an optional protocol might give rise to complaints against poor countries, which
are not able to implement fully all economic, social and cultural rights due to lack of the
economic means. The opinion was expressed that lack of resources may be an obstacle to the
realization of economic, social and cultural rights and that only the more affluent States were in a
position to implement binding obligations in this field. One delegation stated that this issue
should be seen in the context of the right to development. Other participants underlined that the
principle of progressive realization, contained in article 2 of the Covenant, ensures that the
realities and economic situation of each individual country are taken into account. Some
delegations also highlighted the fact that economic, social and cultural rights are dealt with by
courts in rich and poor countries alike.
22. The concern was expressed that a complaints procedure might unduly interfere in the
democratic process and national policy-making with regard to political, economic and budgetary
priorities. Responding to this concern, one delegation noted that the recommendations of the
Committee would leave a large margin of appreciation for Governments. The opinion was also
expressed that human rights were not merely a domestic issue and that recommendations of
international treaty monitoring bodies did not constitute undue interference even if these had
implications domestically.
23. Some delegations referred to the benefits of an optional protocol in their opening
statements, noting that a complaints mechanism would: encourage States parties to ensure more
effective local remedies; promote the development of international jurisprudence, which would
in turn promote the development of domestic jurisprudence on economic, social and cultural
rights; strengthen international accountability; enable the adjudicating body to study concrete
cases and thus enable it to create a more concise jurisprudence. One delegation highlighted the
fact that a complaints mechanism allowing for third parties to bring complaints before the
Committee on Economic, Social and Cultural Rights (CESCR) under an optional protocol would
help empower vulnerable and marginal groups.
24. With regard to the question of which rights should be covered by an optional protocol,
some delegations argued that each State should be given the possibility of identifying the
provisions under the Covenant to which the complaints procedure would apply (the “à la carte”
approach). Other delegations argued that it would be better to adopt a comprehensive approach
so that the complaints procedure would cover all substantive rights of the ICESCR.
25. One delegation emphasized that a comprehensive approach should include the right to
self-determination. Another delegation envisaged that within the comprehensive approach only
certain aspects of each right could form the basis of an individual complaint (for example, forced
labour with respect to the right to work).
26. Some delegations questioned whether the Committee on Economic, Social and Cultural
Rights would be competent to receive complaints under an optional protocol without amending
the Covenant. It was noted that the Committee on Economic, Social and Cultural Rights was
formally a subsidiary body of the Economic and Social Council and hence did not have the same
legal status as the other United Nations human rights treaty monitoring bodies. Some
delegations noted that a number of mechanisms exist for monitoring the implementation of
economic, social and cultural rights and that there is a risk of inconsistency between the
decisions of different organs and, above all, a risk of lowering the protection of these rights.
27. The representatives of UNESCO, WHO and ILO as well as NGOs welcomed the
convening of the working group and expressed their willingness to assist in its deliberations,
especially during the discussion on the complementarity of the proposed optional protocol with
existing complaints mechanisms. All representatives of intergovernmental organizations
highlighted the close and long-standing cooperation between their organizations and CESCR.
Specific mention was made, in this regard, of the recent establishment of a Joint
UNESCO/CESCR Expert Group on the Right to Education; the ongoing cooperation between
WHO and CESCR in identifying right to health indicators; and the reports ILO submits to all
sessions at which the Committee considers State reports.
III. INTERACTIVE DIALOGUE WITH SPECIAL RAPPORTEURS
28. During its second meeting, on 24 February 2004, the working group engaged in an
interactive dialogue with Special Rapporteurs of the Commission whose mandates address
economic, social and cultural rights. Following the invitation by the Commission for its
Special Rapporteurs with relevant mandates to share their views on an optional protocol to the
ICESCR, Jean Ziegler, Special Rapporteur on the right to food and Katarina Tomasevski,
Special Rapporteur on the right to education, provided written contributions to the working
group. Oral presentations were made by Paul Hunt, Special Rapporteur on the right to health
and Miloon Kothari, Special Rapporteur on adequate housing.
29. In addressing the question of justiciability, the Special Rapporteur on the right to health
drew attention to the study on economic, social and cultural rights prepared by Danilo Türk for
the then-Sub-Commission on the Prevention of Discrimination and Protection of Minorities
between 1989 and 1992. He noted that the justiciability of economic, social and cultural rights
has been confirmed and clarified by the Sub-Commission study and through decisions by
national courts and by regional human rights systems in Europe, the Americas and Africa, as
well as through the work of the Committee on Economic, Social and Cultural Rights. The nature
and scope of States’ parties obligations under the Covenant are defined in article 2, paragraph 1,
of the Covenant, which requires States to “take steps” towards the progressive realization of
economic, social and cultural rights. Considering the provisions of article 2, paragraph 1, the
Special Rapporteur argued that the Covenant does not impose an onerous burden on States
parties: it requires them simply to show that they have taken some reasonable action towards the
realization of the rights contained therein. Further, Mr. Hunt pointed out the fact that civil and
political rights norms can also be described as imprecise - for example, freedom from torture, the
right to privacy and freedom of expression - which does not hinder the International Covenant on
Civil and Political Rights (ICCPR) from having an individual complaints mechanism.
30. The Special Rapporteur emphasized that an optional protocol to ICESCR would be an
important tool to assist States in better implementing their existing obligations under the
Covenant. Since the national, regional and international experience suggested that the general
legal issue of justiciability of economic, social and cultural rights, including those contained in
ICESCR, had now been resolved, he encouraged the working group to focus on specific legal
questions that still need attention, such as who should be able to bring complaints and whether an
optional protocol should include both a complaints and enquiry procedures.
31. The Special Rapporteur on adequate housing drew on lessons learned from his
experience in undertaking country missions. He noted the importance of national case law in
helping to clarify the contours and content of economic, social and cultural rights, and suggested
that international human rights law has a key role to play in providing guidance to national
courts. An optional protocol to the Covenant would be one important element in the process of
strengthening economic, social and cultural rights. The Special Rapporteur stressed the
importance of implementing the right to adequate housing and other economic, social and
cultural rights in general, and noted the need to redress the gap between recognition and
implementation of these rights, in particular for women. He argued that core elements - such as
non-discrimination and the right to protection against forced evictions - demonstrate the inherent
justiciability of the right to adequate housing. He noted the need for coherence in economic and
human rights policy and suggested that questions related to budget are legitimate issues for
review in light of the minimum core obligations of States parties to the Covenant.
32. In his concluding remarks, the Special Rapporteur on adequate housing reasoned that an
optional protocol to ICESCR would contribute to the process of defining the right to adequate
housing and other economic, social and cultural rights; reaffirm the indivisibility of these rights
from other human rights, such as freedom of movement and security of the person; and help to
address the systematic violations of housing and land rights, as well as other economic, social
and cultural rights.
33. In response to concerns related to the cost of implementation of economic, social and
cultural rights, the Special Rapporteurs noted that the obligations to respect, protect, fulfil apply
to all human rights - civil, cultural, economic, political and social. Certain elements of all human
rights have financial implications and the protection of other elements of human rights norms do
not incur costs.
34. Several examples were given in response to a question on appropriate remedies for
violations of economic, social and cultural rights. The Special Rapporteur on the right to health
suggested that a State may be asked, for example, to cease certain activities or refrain from doing
something (such as conducting forced evictions); to reformulate a policy to address the needs of
vulnerable and marginalized populations; or to provide compensation. Redress for violations of
economic, social and cultural rights may require a reorientation (rather than an additional
allocation) of financial and other resources.
35. Questions were raised with regard to the meaning of the various elements reflected in
article 2, paragraph 1, of the Covenant. On the definition of “maximum available resources”, it
was suggested that an adjudicating body may consider factors such as whether there has been a
growth in income disparity and whether resources are being used in a judicious manner.
Reference was made to recent case law in one country which defined the obligation to fulfil as an
obligation “to facilitate access and to provide” through a series of measures. The court used the
concept of “reasonableness” to assess whether a State has met its obligation to realize economic,
social and cultural rights progressively and noted, for example, that a programme that excludes a
segment of society cannot be said to be reasonable and that policy adjustments would therefore
have to be made.
36. The experience of countries where the Covenant has been made justiciable through its
direct translation into national legislation was noted. With regard to the justiciability of
economic, social and cultural rights at the international level, it was suggested that national and
regional cases would likely be used by an international body to guide the interpretation of the
rights contained in the Covenant. In the light of the experience of CESCR and other treaty
monitoring bodies, it is reasonable to expect that the international adjudicative body under the
optional protocol would defer a broad margin of discretion to States. On the issue of whether
matters related to budget are legitimate for review by a treaty monitoring body considering the
implementation of economic, social and cultural rights, it was suggested that treaty monitoring
bodies have a role to play in ensuring that national policies are in conformity with States’
international obligations.
37. On the issue of the “value-added” of a new accountability mechanism for economic,
social and cultural rights in the light of the existing States reporting procedure under the
Covenant, it was suggested that the two procedures would be complementary. The process of
reviewing periodic State reports, which involves consideration of a vast number of issues over a
period of a few hours every five years, can only address generalities. Drawing on the experience
at the national level, it was noted that a consideration of individual cases may assist a State in
better understanding the nature and scope of its obligations by focusing on a specific situation or
problem, rather than a broad range of issues. Individual cases also have merit as test cases and
may help to raise the profile of economic, social and cultural rights.
38. The risk of conflict between decisions adopted by the Committee and those adopted by
other bodies seized with economic, social and cultural rights was addressed. It was noted that
CESCR has endeavoured throughout its work to ensure consistency with jurisprudence adopted
in other forums. For example, in adopting general comment No. 13 on the right to education, the
Committee made efforts to ensure consistency with relevant decisions, concluding observations
and general comments of the Human Rights Committee and the Committee on the Rights of the
Child. In response to concerns raised in relation to the possible dual role of the Committee
(reviewing periodic reports and considering complaints), the experience of other treaty
monitoring bodies which have both a periodic reporting and a complaints function was recalled.
With regard to a concern about the influence of jurisprudence on States that have not ratified the
protocol, it was suggested that such views and recommendations would help all States to better
understand their obligations imposed by the Covenant. The Special Rapporteurs highlighted that
the Committee is not a judicial mechanism but rather a body of international experts which
provides recommendations to assist States in better implementing their obligations under the
Covenant. They further stated that an optional protocol is a procedural tool which would not
generate new substantive obligations for States.
IV. INTERACTIVE DIALOGUE WITH COMMITTEE EXPERTS
39. The third meeting of the working group, on 25 February 2004, was devoted to an
interactive dialogue with a panel of experts from three Committees: Eibe Riedel, a member of
the Committee on Economic, Social and Cultural Rights; Martin Scheinin, a member of the
Human Rights Committee (HRC); and Régis de Gouttes, member of the Committee on the
Elimination of Racial Discrimination (CERD).
40. In his presentation, Mr. Riedel addressed the question of the justiciability of economic,
social and cultural rights and underlined that the proposed optional protocol was different from
procedures under national courts. Importantly, the Committee would not hand down sentences,
but would provide views akin to the recommendations adopted under the State reporting
procedure. The procedure would not introduce new obligations, but only a new supervision
mechanism for individual and collective complaints. He advocated a comprehensive approach,
allowing for complaints on all substantive rights, and strongly advised the working group against
embarking on an article-by-article discussion of which rights should be subject to a complaints
procedure. In this respect the working group was advised to follow the examples set by other
treaty complaints procedures, such as the optional protocols to ICCPR and the Convention on the
Elimination of Discrimination against Women (CEDAW).
41. Mr. Riedel rejected the view that economic, social and cultural rights are mere aspirations
and policy guidelines. As he underlined, the Covenant is a legally binding instrument under
international law, highlighting the fact that the absence of remedies may weaken the real
enjoyment of rights, but did not derogate them from their quality as rights. He rejected the
argument that economic, social and cultural rights are essentially different from civil and
political rights. Both sets of rights contribute equally to the protection of human dignity. He
also argued against the view that economic, social and cultural rights imply much higher
financial costs than civil and political rights. He underlined that the principle of progressive
realization, stipulated in article 2, paragraph 1, of the Covenant, does not diminish the status of
economic, social and cultural rights, but merely allows for a flexible country-by-country
approach. He also argued against the perception that the Covenant’s provisions are imprecise,
noting that the provisions of other human rights treaties are no less so, and that human rights
provisions are formulated in general terms so as to allow for interpretation and clarification in
the light of experience and the adjudication of concrete cases.
42. Mr. Scheinin described the more than 25 years’ experience of the Human Rights
Committee (HRC) with an individual complaints procedure, which to date had been accepted by
more than two thirds of States parties. He pointed out that the procedure had not led to a flood of
complaints, due to strict admissibility requirements, and that complaints were brought against
developed and developing countries alike. In response to a question that complaints are often
brought against countries that are most respectful of human rights, Mr. Scheinin replied that,
while many complaints had been brought against developed countries, only a small percentage of
these complaints had resulted in findings of violations. Mr. Scheinin defined the views adopted
under the optional protocol as “authoritative legal interpretations of the Covenant”, and noted
that States by and large comply with these views.
43. On the basis of the experience of HRC, Mr. Scheinin advised that the proposed optional
protocol should include a provision on interim measures and argued for a comprehensive
approach, although he noted that article 1 (the right to self-determination) might be omitted if the
optional protocol were to allow groups to bring complaints. On the issue of justiciability, he
drew attention to the fact that HRC has defined several justiciable elements of economic, social
and cultural rights. Describing how complaints were processed, he noted as a defect that HRC is
restricted to reviewing written information submitted by the two parties and is unable to seek
additional information.
44. Mr. de Gouttes, sharing his experience from CERD, highlighted that three important
benefits of a complaints procedure were that it provides an additional avenue of legal redress,
assists States in implementing the Convention, and helps the Committee develop jurisprudence.
He noted that of 169 States parties, 43 had so far accepted the Committee’s competence to
receive individual complaints, a majority of which are members of the Council of Europe. In
line with the other Committee experts, he underlined that CERD does not hand down sentences,
but adopts opinions. He noted that the procedure had not given rise to a large number of
complaints, as the Committee had so far only received 33 communications, and that a number of
the cases involved economic, social and cultural rights, such as discrimination in access to
housing, and in employment and public spaces. He noted that, even when no violation was
found or a case was declared inadmissible, CERD often took advantage of the communication
process to make general recommendations and suggestions to States.
45. Responding to questions and comments from delegations, the Committee members
specified that with regard to the issue of historical violations the principle of ratione temporis
would apply, rendering admissible only complaints concerning violations which continues to
have an effect on the present. On the issue of whether an optional protocol should cover the
international dimension of States’ obligations including the issue of international cooperation,
Committee experts noted that in theory such cases might arise. With regard to the right to
self-determination, it was clarified that the Committee in its practice only considered this right
indirectly by examining how the denial of this right has affected the enjoyment of specific
economic, social and cultural rights - for example, the situation of an indigenous group that had
been evicted from its lands and deprived of its livelihood. Similarly, the Committee deals with
the issue of poverty through looking at its adverse effects on the realization of specific rights
covered by ICESCR and the vulnerability of specific groups.
46. Responding to a concern about the cost of implementing economic, social and cultural
rights and possible undue interference with States’ policy-making, it was clarified that not all
social service policies raise human rights questions. It was also noted that a complaints
procedure would deal with cases where the minimum requirements essential to lead a life in
dignity were not fulfilled, and that States always retain the final decision as to the measures they
will take in response to views adopted by the Committee.
47. On the question of whether an optional protocol should include either a comprehensive or
“à la carte” approach, Mr. Riedel underscored that the Committee was unanimous in its view that
all economic, social and cultural rights have justiciable elements. He noted that, while an “à la
carte” approach might facilitate ratification, it would be at the expense of settling for a lesser
procedure which might negatively affect the protocol’s synergy with the Covenant as a whole.
48. Responding to a concern raised about possible overlap and inconsistencies between
the different treaty body procedures, professionalism within the secretariat servicing the
Committees was highlighted as of key importance, to ensure that all human rights concerns and
existing jurisprudence of other treaty monitoring bodies are taken into account. The
representative of ILO noted in this regard that coherence is facilitated by the close cooperation
between ILO and the Committee. Committee members also pointed to the coordinating function
of regular inter-Committee meetings and meetings of Committee Chairpersons.
49. Responding to a question about the added value of an optional protocol, it was argued
that the optional protocol had been a lifeline for the Human Rights Committee, enabling it to
define its position on various legal issues. Similarly, an optional protocol to ICESCR would
allow the Committee to develop more concise jurisprudence, through an in-depth analysis of
individual cases, which would be easier for domestic courts to follow. It was pointed out that,
while a complaints procedure cannot realistically be expected to render justice to everybody, the
case law which it will generate will assist national courts in applying the rights of ICESCR.
50. Responding to comments, Committee members noted that an optional protocol would
complement measures already taken by the Committee to enhance the monitoring system. It was
also noted that a complaints procedure would raise awareness about the Covenant, as individual
cases were more appealing to the media.
51. On the issue of whether the Committee would be competent to receive complaints under
an optional protocol given its status of a subsidiary body of ECOSOC, Committee experts noted
that, in their views, it would be possible for ECOSOC to assign this new task to the present
Committee. It was indicated that the optional protocol offered an opportunity to give the
Committee a treaty basis and give it the same legal status as the other human rights treaty bodies.
Responding to those delegations who had reservations about the benefits of an optional protocol,
the experts underlined that the protocol was optional.
V. DISCUSSION ON THE NATURE AND SCOPE OF STATES
PARTIES’ OBLIGATIONS UNDER THE ICESCR
52. During its fourth day of discussion, the working group focused on a discussion of issues
related to the nature and scope of States parties’ obligations under ICESCR. The secretariat
provided the working group with a briefing on the process leading up to the adoption of the
Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against
Women as background information. The presentation focused on the content of the optional
protocol, which contains both a complaints procedure and an inquiry procedure, and on the
issues that were addressed in the course of the negotiations leading to its adoption in 2000.
These issues included: who should have the legal standing to bring a complaint; whether an
inquiry procedure should be included in the Optional Protocol in addition to a complaints
procedure; whether the Optional Protocol should include a prohibition on reservations; whether
an Optional Protocol would lead to overlap or duplication of procedures, and/or compromise
efforts to mainstream the rights of women and gender perspective into human rights activities;
the justiciability of the provisions of the Convention; implications for the workload of the
Committee; and financial implications. These issues were ultimately resolved and a consensus
text was adopted.
53. The working group then engaged in a discussion on the nature and scope of States
parties’ obligations under ICESCR. Some delegations recalled that the Vienna Declaration and
Programme of Action confirmed the universality, interdependence and indivisibility of all human
rights and noted that the Covenant is an international legal instrument which contains obligations
binding on all States parties. With regard to the nature of the rights contained in the Covenant,
some delegations pointed out that certain provisions of the Covenant are drafted in imprecise
terms and suggested that there could be a lack of predictability in the Committee’s views and
interpretations. Other delegations noted, however, that in this regard the Covenant does not
differ fundamentally from civil and political rights treaties. They stated that it is for interpreters
of the treaty to apply particular provisions of the Covenant to concrete situations, as is the
current practice of the Committee in its review of periodic States Parties’ reports. Other
delegations questioned this view. Some delegations noted that civil and political rights have
benefited from years of interpretation at the international, regional and national levels, and
underscored the importance of individual complaints procedures to this process. An optional
protocol on economic, social and cultural rights would contribute to a similar process of
clarifying the nature and scope of these rights.
54. The working group discussed the need to improve the implementation of economic,
social and cultural rights, and considered whether the elaboration of an optional protocol would
be the most effective means for achieving this objective. Some delegations raised the question
of whether an optional protocol would result in an improper reinterpretation of the Covenant,
given that the Covenant contains specific procedures for amendment. While some delegations
emphasized that the optional protocol would be a quasi-judicial procedure and that the
Committee, like other human rights treaty monitoring bodies, would only make
recommendations, some delegations questioned the nature of the Committee’s decisions on
individual cases and suggested that “quasi-judicial” recommendations by a treaty body may be
interpreted in practice as “judicial” decisions. Other delegations drew attention to the fact that
an optional protocol would be a procedural tool to enable an individual or group to present a
complaint based on the existing provisions of the Covenant. As a procedural tool, it would not
generate new obligations on States parties, nor would it change the nature of existing obligations.
55. The working group discussed the obligations on States parties to respect, protect and
fulfil economic, social and cultural rights. The obligation to respect requires States parties to
refrain from certain practices, whereas the obligation to protect requires them to take steps to
protect individuals’ economic, social and cultural rights from interference by third parties. Some
delegations noted that the obligations to respect and protect are generally of immediate
application and require few, if any, resources. Other delegations highlighted that the
implementation of economic, social and cultural rights require significant resources. The
obligation to fulfil requires States parties to actively work towards the realization of economic,
social and cultural rights. Some delegations emphasized that there were difficulties in
interpreting the scope of the obligation to fulfil economic, social and cultural rights.
56. Several delegations noted that the concept of progressive realization reflected in article 2
of the Covenant is fundamental to the implementation of economic, social and cultural rights,
particularly in the light of resource constraints. Some delegations noted, however, that this
concept has at times been misunderstood to mean that the Covenant is not strictly binding and
that States are able to decide how and when to implement their treaty obligations. In this regard,
it was noted that the ultimate objective of progressive realization is the full implementation of
economic, social and cultural rights. Some delegations drew attention to the fact that certain
elements of these rights are subject to immediate implementation. Immediate steps may include
ensuring that national legislation is in conformity with the Covenant; the right to an effective
remedy for violations of economic, social and cultural rights; and resources for minimum
essential levels for economic, social and cultural rights. Some delegations further noted that
States parties are required to give due priority to the realization of economic, social and cultural
rights when deciding how to use available resources and that they should avoid deliberately
retrogressive measures. In this regard, some delegations raised the question of whether the
Covenant prohibited all retrogressive measures.
57. Several delegations discussed the potential cost implications of the implementation of the
provisions of the Covenant. Reference was made in particular to the obligation reflected in
article 2 for States parties to take steps “to the maximum of its available resources”. Several
delegations raised questions over whether allocation of resources was a legitimate issue for
review by a treaty body under an individual complaints mechanism and, if so, what criteria
would be used in deciding on the appropriate allocation of resources. Some delegations
suggested that any assessment of whether a State party has discharged its minimum core
obligations must take into account the extent of resources available to the State party. One
delegation queried what the threshold would be for interpreting the meaning of the “maximum
available resources”.
VI. DISCUSSION ON THE JUSTICIABILITY OF ECONOMIC,
SOCIAL AND CULTURAL RIGHTS
58. At its fifth meeting, on 27 February 2004, the working group discussed in more detail the
question of the justiciability of economic, social and cultural rights. The discussions focused on
the question of whether and to what extent economic, social and cultural rights are able to be
adjudicated under a complaints procedure to ICESCR, and whether the proposed optional
protocol would enhance the protection of economic, social and cultural rights. A number of
delegations made reference to case law from national and regional courts and argued that the fact
that economic, social and cultural rights were already adjudicated upon by some courts
demonstrated that these rights could in principle also be subject to a complaints procedure under
ICESCR. Conversely, other delegations argued that a complaints procedure would be
inappropriate because of the particular character of economic, social and cultural rights.
59. The working group considered the nature of the provisions of ICESCR. A number of
delegations argued that the provisions of ICESCR were imprecise and consequently did not lend
themselves to adjudication under a complaints procedure. Other delegations maintained that the
provisions were sufficiently precise to allow for a complaints procedure, arguing that the
provisions of ICESCR cannot be spelled out in more detail as they are context-dependent and
subject to interpretation in the light of particular situations. Some delegations referred to
examples to show that provisions of ICCPR were also imprecise, and that these rights were only
given more concrete meaning when invoked in particular contexts. Several delegations argued
that the rights in ICESCR had been sufficiently elaborated already by the Committee. Some
delegations noted that States should be involved in the definition of the rights in order to reach
consensus prior to the development of an optional protocol. One delegation expressed the view
that, through interpretation of these rights, the Committee may in fact expand the rights
guaranteed by ICESCR.
60. Several delegations cited case law of national and regional courts involving various
economic, social and cultural rights. One example concerned the adjudication of the question
whether a State had progressively realized a particular economic, social and cultural right under
the Constitution (the right of access to adequate housing). Another example was a case noting
that the State had an obligation to ensure efficient mechanisms for the implementation by
employers of social security schemes under the right to social security. The secretariat submitted
a background document containing a selection of case law on economic, social and cultural
rights.
61. The issue of how the Committee would exercise its mandate under an optional protocol
was also discussed. In particular, it was noted that it would be useful to know more about the
criteria that would be used in determining whether a violation had occurred. Some delegations
noted that views expressed by the Committee under an optional protocol might lead to division
among States, as some States might not accept the Committee’s interpretations and contest its
interpretive authority. A number of delegations expressed concerns that the Committee’s views
concerning States’ social policies and resource allocations might unduly interfere with the
policy-making powers of legislatures.
62. With regard to the criteria that would be used by the Committee, a number of delegations
pointed out that complaints should be subject to strict admissibility criteria, similar to those
adopted by other complaints procedures. It was also noted that it did not fall within the
Committee’s purview to engage in policy-making as had also been underlined by Committee
experts, and that States always enjoy a margin of discretion in deciding on the means for
implementing their obligations. One delegation noted that the balanced approach demonstrated
by the Committee in its general comments and recommendations under the State reporting
procedure should help to address concerns over how the Committee would carry out its mandate
under the proposed optional protocol. It was also pointed out that States have already accepted
complaints procedures to five other human rights monitoring bodies, without questioning how
these would carry out their respective mandates.
63. A number of delegations suggested that economic, social and cultural rights are less
absolute than civil and political rights, given that the criteria for establishing infringements of
ICESCR varied with the resources available to a State. It was argued that economic, social and
cultural rights are complex and must be considered in light of the national context, the
implementation and adjudication of these rights were best left to courts at the national level. As
it was noted, it would be difficult for a Geneva-based treaty monitoring body to acquire a
complete and adequate understanding of the local context.
64. Other delegations believed that the rights of ICESCR were not less absolute as compared
to those of ICCPR. The fact that the monitoring of the implementation of ICESCR requires a
country-by-country approach and that the primary responsibility for the implementation of
economic, social and cultural rights rests with domestic courts and local authorities was not seen
as a valid argument against international treaty monitoring. A number of delegations pointed out
that States parties to ICESCR had already accepted international monitoring of economic, social
and cultural rights under the State reporting procedure and that complaints under an optional
protocol would only be admissible if all domestic remedies have been exhausted. Furthermore,
concerning the argument that the Committee would not have an adequate understanding of the
local context, it was pointed out that the Committee would rely on information provided to it by
States and that States would be responsible for ensuring the adequacy of this information.
65. In the exchange of views on the question of justiciability, different views were expressed
on whether the proposed optional protocol should cover all substantive articles of the Covenant
or only a selection of these. Some delegations expressed doubts as to whether all economic,
social and cultural rights were equally justiciable. Others questioned whether all provisions were
susceptible to an individual complaints procedure, and noted that this issue needed to be studied
further. One delegation argued that the main question is not whether economic, social and
cultural rights were justiciable, but whether an international human rights committee was the
appropriate body to adjudicate upon these rights or if their interpretation should be left to
adjudication at national level. Several delegations referred to the tripartite typology of
obligations, according to which States parties have an obligation to respect, protect and fulfil
economic, social and cultural rights. Some delegations expressed doubts as to whether a failure
to “fulfil” and “take steps to the maximum of available resources” could reasonably constitute a
violation. A number of delegations suggested that an “à la carte” approach might be appropriate
as it would allow each State to select only those rights that are already justiciable under domestic
legislation. Other delegations favoured a limited approach whereby only a selected number of
provisions of ICESCR would be covered by an optional protocol.
66. Other delegations favoured a comprehensive approach arguing that an optional protocol
should cover all substantive rights contained in the Covenant. A number of delegations
underlined in this regard that an optional protocol would merely be an additional monitoring
mechanism, complementing the existing reporting procedure, and that it should therefore
adopt the same comprehensive approach as the State reporting procedure. It was also pointed
out that it would be difficult to separate the provisions of the Covenant into justiciable and
non-justiciable rights, given their interrelatedness and interdependence.
VII. DISCUSSION ON THE BENEFITS OF AN OPTIONAL PROTOCOL
TO THE ICESCR AND ITS COMPLEMENTARITY WITH OTHER
MECHANISMS, AS WELL AS ITS PRACTICABILITY
67. The sixth meeting of the working group was devoted to a discussion on the benefits of an
optional protocol to ICESCR and its complementarity with other mechanisms.
68. The representative of UNESCO noted the need to raise the status of economic, social and
cultural rights, and welcomed the timeliness of a discussion on options for the elaboration of an
optional protocol to ICESCR. The representative described the reporting and communication
procedures within UNESCO’s competence and demonstrated how these differed from the
complaints procedure envisaged under an optional protocol. In particular, he noted that
UNESCO’s communication procedure was not a judicial or quasi-judicial procedure, but rather a
confidential procedure aimed at finding friendly solutions to concrete cases. He further noted
that the Committee on Conventions and Recommendations (CRE), which receives and considers
communications, is not an independent expert body but is composed of State representatives. He
suggested that an optional protocol to ICESCR would be complementary to UNESCO
procedures and noted that the long-standing cooperation between UNESCO and the Committee
on Economic, Social and Cultural Rights had recently been further strengthened by the
establishment of a Joint CRE/CESCR Expert Group on the Rights to Education.
69. The representative of the International Labour Office commented on the complementarity
that has long existed between the work of the Committee on Economic, Social and Cultural
Rights and ILO supervisory bodies. The representative noted that the Covenant builds on
pre-existing standards of ILO and that subsequent ILO instruments have drawn on provisions
contained in the Covenant. ILO also referred to the complaints mechanism under article 26 of
the ILO Constitution and to the ILO Committee on Freedom of Association. Under article 26,
States, delegates to the International Labour Conference or the ILO Governing Body may lodge
complaints against another State which is not securing the effective observance of an ILO
convention. The Committee on Freedom of Association receives complaints lodged by workers’
and employers’ associations. These associations can also lodge representations under article 24
of ILO Constitutions concerning the observance of a ratified convention. There is no individual
complaints mechanism within the ILO framework. The representative of ILO highlighted the
fact that ILO regularly submits information to and engages in a dialogue with the Committee,
and that its supervisory bodies refer to the general comments and concluding observations of the
Committee in their work. On the issue of the standards used in deciding on the compliance of a
State with its obligations under international law, the representative noted that ILO supervisory
mechanisms consider whether the country is making good faith efforts to comply with ILO
treaties. In response to a question from a delegation, the representative of ILO noted that there
had been no discrepancies between ILO Conventions and ICESCR.
70. On the question of the benefits of an optional protocol, several delegations recalled the
Vienna Declaration and Programme of Action reaffirmation of the universality, interdependence
and indivisibility of all human rights and suggested that there was a need to correct the historical
asymmetry between civil and political rights, on the one hand, and economic, social and cultural
rights on the other. An optional protocol to ICESCR would further the realization of economic,
social and cultural rights. It would help to clarify the nature of States parties’ obligations and
provide a more precise understanding of economic, social and cultural rights by reference to
specific situations involving individuals and help increase knowledge on economic, social and
cultural rights. Some delegations noted that an optional protocol would give economic, social
and cultural rights clarity, it would combat arguments against the justiciability of economic,
social and cultural rights and would provide a remedy for victims of violations of those rights.
Further, an optional protocol would make up for the lack of information before the Committee.
Given that other international human rights instruments have complaints mechanisms, one
delegation noted that a higher burden of proof should be placed on States to prove that there are
no benefits to adopting an optional protocol under ICESCR.
71. However, some delegations expressed concern over the cost of an additional human
rights procedure in light of the overstretched resources of the United Nations human rights
system and believed that the benefits of an optional protocol should justify the additional cost.
Some delegations referred to the various existing individual complaints mechanisms which deal
with aspects of economic, social and cultural rights (HRC, CERD, CEDAW). Another
delegation suggested that individual complaints would mostly be brought against countries most
respectful of human rights. One delegation indicated that the inclusion of a complaints
mechanism could have a negative effect on the ability of the Committee to undertake its existing
functions. Another delegation noted that spending resources on litigation might not be the best
way to promote these rights. Some delegations suggested measures for improving respect for
economic, social and cultural rights through existing procedures, including reform of current
Committee procedures, improvement of treaty body procedures and allocation of additional
resources to the Committee and the CESCR secretariat. Other delegations warned against the
proliferation of mechanisms under human rights treaties.
72. One delegation emphasized the importance of judging the benefits of an optional protocol
on its potential to help victims. Some delegations suggested that efforts should focus on
improving implementation at the local level and strengthening national mechanisms for
overseeing the implementation of economic, social and cultural rights rather than on
international supervisory mechanisms. Others noted that the two are complementary in nature
and that an individual complaints mechanism at the international level would assist the
development of jurisprudence at the national level. They also stated that the Committee
regularly draws on national and regional jurisprudence related to economic, social and cultural
rights in its deliberations. Some delegations further noted that an optional protocol would be an
important means for addressing situations where there is no effective system at national level for
monitoring the implementation of economic, social and cultural rights. Some delegations
indicated that there were still questions concerning the benefit of an optional protocol that did
not yet have an answer while other delegations stated that they were convinced of the benefits.
73. Several delegations linked the benefits of an optional protocol to procedural issues. For
example, some delegations emphasized the importance of including a provision on the
exhaustion of domestic remedies as a requirement for admissibility. Some delegations raised the
possibility of the same complaint being submitted to several complaints mechanisms at the same
time, which could lead to inconsistencies in interpretation. Other delegations suggested that an
optional protocol should include a provision on the inadmissibility of complaints already under
adjudication before another body. One delegation called for an updated report from the
secretariat on the report provided to the working group on an optional protocol to CEDAW,
which compared existing communications and enquiry procedures under international human
rights instruments.
74. A number of delegations questioned whether an optional protocol would overlap with
existing supervisory mechanisms at the international level, including ILO, UNESCO as well as
mechanisms under human rights treaties, and queried whether this overlap detracted from the
benefits of an optional protocol. Other delegations noted that none of the existing mechanisms
address the provisions of the Covenant in a comprehensive way, and that they are limited either
by subject matter, geographic scope or the groups and individuals with standing to bring a
complaint. Some delegations noted the need for predictability in relation to economic, social and
cultural rights, and expressed concern that an optional protocol may lead to conflicting
interpretations of the norms and standards contained in the Covenant. Other delegations
suggested that the risk of such conflict already exists in relation to civil and political rights, and
that this concern would not outweigh the benefits of an optional protocol. Some delegations
suggested the need for increased communication and cooperation between such bodies as a
means for avoiding discrepancies.
VIII. RECOMMENDATIONS OF THE CHAIRPERSON-RAPPORTEUR
75. The Chairperson-Rapporteur takes the sole responsibility for the following
recommendations. During its final sessions, the working group considered a wide range of
options for its future mandate. In the opinion of the Chairperson-Rapporteur, widest
support in the working group was registered for the recommendations in the following
paragraphs. On this basis, the Chairperson-Rapporteur forwards these for consideration
by the Commission.
76. The working group met for two weeks to consider options regarding the elaboration
of an optional protocol to the International Covenant on Economic, Social and Cultural
Rights with the participation of experts. The working group did not reach consensus on
whether to start drafting an optional protocol. Consequently, the Chairperson-Rapporteur
recommends a deepening of the rich debate of its first session. Accordingly, the
Chairperson-Rapporteur recommends that the Commission:
(a) Renew the mandate of the open-ended working group for a period of two
years to consider options regarding the elaboration of an optional protocol to the
International Covenant on Economic, Social and Cultural Rights;
(b) Authorize the working group to meet for periods of 10 working days prior to
the sixty-first and sixty-second sessions of the Commission on Human Rights;
(c) Invite a representative of the Committee on Economic, Social and Cultural
Rights to attend these meetings as a resource person.
77. The Chairperson-Rapporteur also recommends that the Commission:
(a) Identify experts who could be invited to future sessions of the working group
including:
− Representatives of three human rights committees with communications
procedures, in particular a representative of the Committee on the Elimination
of Discrimination against Women;
− Representatives of regional human rights mechanisms;
− Representatives of ILO and UNESCO in relation to complaints mechanisms
within the mandates of these organizations;
− Special procedures of the Commission on Human Rights; and
(b) Request as background documentation for its next session a report of the
Secretary-General providing the working group at its second session a comparative
summary of existing communications and enquiry procedures and practices under
international human rights instruments and under the United Nations system.
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