Report from the Working Sessions

Challenging Poverty and Inequality through Human Rights:

International Strategy Meeting on Economic, Social and Cultural Rights and

ESCR-Net General Assembly

Nairobi, Kenya
December 1 - 4, 2008

 

To download the report, click here.

Session 1: THE OP CURRENT STATUS, FUTURE CHALLENGES AND NEXT STEPS

Session 2: ROUNDTABLE - MAKING THE CONNECTION -- LAWYERS, SOCIAL MOVEMENTS AND CLAIMANTS 
Held in collaboration with Adjudication and ESCR Working Session. View the Report here.

Session 3: CURRENT CONCEPTUAL ISSUES IN ESC RIGHTS LITIGATION
Held in collaboration with Adjudication and ESCR Working Session. View the Report here.

Session 4: EQUALITY RIGHTS AND SOCIAL RIGHTS - LITIGATION AND ADVOCACY STRATEGIES
Held in collaboration with Adjudication and ESCR and Women and ESCR Working Session. View the Report here.

Session 5:  NEXT STEPS FOR THE OPTIONAL PROTOCOL

[Note: Session 6 was not held due to time constraints]

Session 7: STRATEGY SESSION TO DEVELOP A WORKPLAN FOR FUTURE COLLECTIVE ACTION
Held in collaboration with Adjudication and ESCR Working Session. View the Report here.

 

 

SUMMARY OF WORKING SESSIONS ON

OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON
ECONOMIC, SOCIAL AND CULTURAL RIGHTS (OP)

 

Session 1: THE OP CURRENT STATUS, FUTURE CHALLENGES AND NEXT STEPS

1.     Moderator, Elin Wrzoncki, International Federation of Human Rights (FIDH), France 

After an introduction from the participants to this session the moderator explained that the OP had been adopted in the last session of the Human Rights Council in June 2008. It is expected to be adopted by the UN General Assembly on the 60^th Anniversary of the Universal Declaration of Human Rights in December 10th, 2008[i].  During this session an introduction to the Optional Protocol was given, and participants discussed future challenges, strategies and future collaborative work on this issue.

2.    Presentation on the Objectives and Aims of the Agenda. Brief Introduction to the NGO Coalition for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR) and to the Optional Protocol Process, Lilian Chenwi, Community Law Centre, South Africa 

 

Lilian introduced the NGO Coalition for an OP (http://www.opicescr-coalition.org/).  The Coalition is formed by international NGOs, regional networks, grassroots activists, community based organizations, and individuals, all of whom have a common goal to promote an OP-ICESCR.

Lilian explained that the aim of the Coalition is to:  

Part of the importance of a communication procedure is that it develops international law, creates precedent and draws attention to human rights violations.  In addition to a communication procedure, the Optional Protocol also includes interstate communication and an inquiry procedure.   

 

Overview of the Optional Protocol provisions:

Art 1. Competence of the Committee

Art 2.  The scope of the rights as well as standing

Art 3.  Admissibility

Art 4.  Communication not revealing a clear disadvantage

Art 5. Interim measures

Art 6.  Transmission of the communication

Art 7.  Friendly settlement

Art 8. Consideration of the merits

Art 9.  Follow-up to the views of the Committee

Art 10. Inter-State communications

Art 11 and 12 Inquiry procedures

Art 13. Protection measures

Art 14. International assistance and cooperation

Art 15 to 26 Deal with a lot of technical matters

Next steps

The Optional Protocol will be adopted in December and will be open for signature in March 2009. We should be looking at countries to sponsor the resolution for the adoption of the OP through among other things creating public awareness of the mechanism even among UN delegations of the OP.  The next steps should also focus on developing rules of procedures that promote the principles the OP embodies. We should also start looking at ratification and implementation campaigns.

Future challenges

A number of challenges lie ahead. These include: the general implementation of the OP since it is an 'optional' mechanism; ensuring resources (both human and financial) are available to facilitate accessibility to the mechanism, especially for those in developing countries; teed for strategic litigation - ensuring that from the onset appropriate cases are brought before the Committee that would lead to a strong jurisprudence that advance ESCRs and result in effective remedies; and ensuring effective implementation of interim measures as well as the views of the Committee and follow-up

3.    Can the OP Help in the Protection of Informal Settlement Dwellers? Joseph Schechla, Habitat International Coalition (HIC), Egypt.

After the introduction, this session moved to analyzing what can the Optional Protocol bring in terms of protection to different traditionally marginalized groups? Joseph explained that the question should go beyond protection to ask whether the Optional Protocol can help in the respect and fulfillment of the rights of informal settlement dwellers (ISD).  To respond, we need to ask if the OP can deliver justice to informal settlement dwellers and look at the OP's strengthens and weaknesses.  It was proposed to generate some discussion by looking at the OP in light of other options. To answer the question posed by the title of the panel, an international definition of justice was used. The definition comes from several international norms overtime. But the most recent reiteration of the same principles is the resolution 147 from the 60^th session of the General Assembly: Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.

Reparation has an international law dimension made of different elements:

1)    The first element is restitution.  This means the return of lost values: return of the land taken, the house and property that was destroyed or confiscated.  The reparation of all material things such as  the land, the trees, the chicken in the yard;  (a) The voluntary return of displaced people or resettlement if the return is not possible; (b)  It also means compensation for those things that can't be physically returned e.g. rent and (c)  It means as well rehabilitation; physical, economic and social.

2)    The second element is the promise of non-repetition, and

3)  Satisfaction; i.e., victim's sense that justice is done.

There are different jurisdictional options to claim reparation: (a) domestic litigation; (b) foreign jurisdictions (such as the Aliens Torts Claim Act) (c) regional jurisdictions (d) international options, which include treaty bodies, special and Ad Hoc Tribunals, special procedures such as Special Rapporteurs and in the near future the OP-ICESCR and Independent Experts.  Within the international jurisdiction there is also the possibilities offered by State to State claims such as the International Court of Justice and the International Criminal Court, and (e) Universal jurisdiction has also been used in certain cases in relation to housing rights violations and finally Administration mechanisms and arrangements have also been used (such as in the occupation of Kuwait, Iraq and others)

The Optional Protocol requires at least there be a number of domestic remedies but it doesn't have coercive measures which limit the elements of reparation.   It contains a fund which has a rather progressive element, and it is meant to support the implementation of the recommendations of the Committee on Economic, Social and Cultural Rights, the body in charge of implementing the Covenant.  Comparing the OP-ICESCR to the ICC or other criminal prosecutions:

OP-ICESCR	ICC or other criminal prosecutions
Individual(s) victims & reps. present	Individual(s) victims & reps. present*
Exhaust domestic remedies	Exhaust domestic remedies not required
Present w/in 1 year of exhausting remedies	Present anytime (no statute of limitations)
State actors	All legal and natural persons
"Friendly settlement"	Prosecution
No coercive force	Enforceable ruling
Confidential procedures	Public procedures
ESCR "progressively realized"	ESCR immediate obligations (African Court)
No reparations goal	Reparations framework
Fund for implementing recommendations (state)	Victim's Fund @ ICC
Ratification of OP-ICESCR required	No ratification required (except for ICC)
*  States present in ICJ, or other jurisdiction under "State responsibility"

Joseph illustrated some patterns of justiciability of crimes:

A strategic choice that needs to be made when choosing a venue to present a claim is: shall we aim for the prosecution of violations of the Human Right to Adequate Housing (HRAH) as crimes (with reparations criteria in ICC), or "friendly settlement" that may be more economical. The ICC requires Standards of Evidence, including quantification of losses and costs, in order to demonstrate the degree of harm as an element of crime. It is an interesting prospect to apply ICC standards of evidence in OP-ICESCR cases. There is an opportunity to develop OP-ICESCR jurisprudence toward reparations (justice) beyond the current OP text.  Strategic litigations under OP jurisprudence could "normalize" adjudication of ESCR violations so as to influence the further development and clarity for other jurisdictions (e.g., ICC) to try ESCR violations as crimes.

Within the ESCR-Net strategy meeting, this relates to the Open Space topic of the ETO Consortium and developing a spectrum of jurisprudential options for litigating ESCR. The Housing and Land Rights Network's is working on a manual presenting HRAH violations as crimes, including war crimes and crimes against humanity: Lebanon War 2006, Annexation Wall in Palestine, Operation Matumbatsvina in Zimbabwe, etc.

A comment was made that indigenous peoples would find less gratification from OP-ICESCR, since it appears that individuals and groups of individuals are heard, but not collective rights. OP-ICCPR permits claims under articles 5 onwards, not allowing for self-determination claims. If in the CESCR type of outcomes, policy recommendations and even Fund support could have preventive and policy-level effect, criminal trials prosecuting individuals and other entities may not have that forward-looking consequence, except in the sense of providing deterrence.

4.    Women's Human Rights. What is added by the OP-ICESR, Brenda Campbell, International Women's Rights Action Watch - Asia Pacific (IWRAW-AP), UK; [power point presentation available]

IWRAW-Asia Pacific has been involved in the work on the OP Protocol and on the OP Coalition since a mandate was given to a Working Group to explore options towards the creation of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights more than 6 years ago. IWRAW-AP is an organization that has worked intensively and almost exclusively in the implementation and the use on CEDAW and on the OP to the CEDAW, so when the opportunity came to get involved in the OP-ICESCR campaign it was for a natural progression for the organization but perhaps not an obvious one. 

Women are 70 percent of the world's poor and they own 1 percent of the world's wealth[ii].

This brings home why it is important for an organization that works on women's human rights to be involved in the OP campaign, but also hopefully to bring home why all who work in different areas of ESCR whether is in relation to housing, health or work should absorb the principle of equality and not discrimination into our work because in order to address ESCR it has to be done holistically. 

 

In every country in the world, women are poorer than men, and their poverty and economic inequality affects every aspect of their lives - their basic survival and the survival of their children, their access to food and housing, their physical security, their ability to escape from violence, their sexual autonomy, their health, their access to education and literacy, their access to justice, their ability to participate in public life, their ability to influence and participate in decisions that affect them.  This is to get back to why IWRAW-AP got involved in the OP campaign.  IWRAW brings to the OP campaign two important issues:

The objectives are and remain:

Article 3 of the ICESCR states that:

The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.

 

Also General Comment 16, paragraph 22 states that:

Article 3 is a cross cutting obligation and applies to all the rights contained in Article 6 to 15 of the Covenant. It requires addressing gender-based social and cultural prejudices providing for equality in the allocation of resources, and promoting the sharing of responsibilities in the family, community and public life.

Brenda explained that it was her understanding that when the general comment was drafted it took a lot of effort to convince the Committee to bring into the General Comment issues around the substantive equality and non discrimination in relation to women's human rights. The OP is a good instrument even when it contains compromises.   What we need from the OP and the Committee is a promise, and undertaking to properly discharge the obligations set out in the Covenant. This requires the Committee and the states party to have a full appreciation of the historical and social inequalities faced by women in society. 

What this means for groups working on women's rights is an opportunity presented by the Optional Protocol to educate the Committee in due course with the jurisprudence of for example CEDAW Committee who has made significant advances not only in the monitoring of the State Parties to the treaty but also through communications and inquiries that have been presented under the OP-CEDAW.

The OP-ICESCR can offer: increased recognition of women's ESC rights and increased visibility of violations of those rights, strengthening the justiciability of ESC rights and women's ESC rights in particular and the opportunity to hold states and non state actors accountable for violations of women's ESC rights. In order to achieve this the Committee is obligated to: analyzing the progressive realisation of rights and the obligation to respect, protect and fulfil rights from a gender perspective; adopting a holistic approach in assessing violations of women's ESC rights - drawing on jurisprudence from other committees, including the CEDAW Committee, providing reasoned jurisprudence on ESC rights which can be used in other jurisdictions (at the national and international level and before other committees); and developing gender sensitive indicators to ensure that states are fulfilling obligations towards women.

  

Some concerns that exist include that the text of OP-ICESCR is generally viewed as weaker than that of OP-CEDAW:

  

Although, on the road to obtaining the OP-ICESCR significant concessions were made by NGOs on issues that they hold dear, it is our view that many of the concerns apparent in the text can be overcome through an expansive interpretation by the Committee, well armed and educated by precedents from other Committee's before it.

5.    Indigenous People: How Will the OP Strengthen Their Claims, Oscar Ayala Amarilla, Tierraviva, Paraguay

Oscar started his presentation pointing out that the OP is one of the available legal tools for victims of human rights violations.  However, these tools on their own do not necessarily translate to a reduction of human rights violations at the national level.   Whereas the 60's and 70's, Latin America experienced gross violations of civil and political rights, in the 80's and 90's, with the opening of democracies in Latin America, massive human rights violations are now of economic, social and cultural rights.   Looking at Paraguay's experience, we see that in the struggle for human rights and the struggles of indigenous peoples', these legal instruments are powerful tools to claim redress. However, in order to ensure that they translate into the realization of human rights protections, they must be joined with actions by social movements and indigenous peoples - the type of political action that only the masses can create to gain systemic change. 

Oscar shared his experiences to illustrate the view of Paraguay's indigenous peoples on the OP.  Tierra Viva has litigated two cases before the Inter-American Court of Human Rights.  In one of the cases, which related to the Yakye Axa Community in Paraguay, the Court ordered the restitution of the land to the indigenous community and gave a 3 year term for the State to comply.  The State has not yet complied, so the community, who had to exhaust all domestic remedies, then submitted a case before the Inter-American Commission and then finally had it heard by the Inter-American Court, still remains without their land.  The Community held a protest prior to this meeting in Kenya and the community was asking what else could be done through the legal system.  Understanding that there was no more that could be gained through the Inter-American System, the communities decided to continue with their struggle, by mobilizing and camping in the plaza of Asunción. Through these efforts they pressured the President of Paraguay to request that the Congress to return the land that belongs to the community.  Oscar discussed the issue of the Optional Protocol with some leaders of the communities and they were wondering if this instrument will have the same results as the process in the Inter-American Court.  This sort of instruments seem very remote and elitist to these groups.  International processes are long and expensive so the communities have now a tendency to look to their own internal capacities to find solutions to the human rights violations they face. 

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Session 5:  NEXT STEPS FOR THE OPTIONAL PROTOCOL

1.    Moderator, Sandra Ratjen, FIAN International, Germany

2.    Rome Statute: Amnesty's Campaign for Universal Ratification, Meghna Abraham, Amnesty International, UK,

 

Meghna talked about the Rome Statute ratification campaign, in light of how that experience may be useful for a ratification campaign for an Optional Protocol.  Important aspects that were highlighted were:

Key lessons that we can learn for a campaign for the OP-ICESCR are that we have to think about it as a very long process. It will also be a resource and energy intensive process in relation to the coordination and campaigning that needs to be done, that will require a lot of work from many different organizations, to build resources, fact sheets put pressure on countries, etc.  As we shift from focusing on the OP Working Group to getting an effective process, to a ratification campaign, the OP work will face the challenge of it being "owned" more by national level groups.  It is important to think about national campaigns not only thinking about ratification to ensure the instrument complements the work that is happening at the national level. We need to take this instrument that seems very remote and make it relevant for people. 

3.    OP-CEDAW CAMPAIGN: 'Our Rights Are Not Optional! Brenda Campbell for Clara Rita Padilla, Engender Rights, Philippines.

Brenda pointed how the process of adoption of the OP CEDAW was largely the same as that of the OP to the ICESCR.  There are now around 95 states party to the OP CEDAW. Many of the arguments that were presented against the OP ICESCR were similar to those presented to the OP CEDAW (that the rights are not justiciable, that they cannot be litigated, that they are not rights, etc.). For the OP CEDAW there was first a ratification campaign that required a lot of will, power and resources. A campaign requires funding, and it requires a coordinated, persistent pressure at both the international as well as national level. The immediate goal in mind for the OP ICESCR was to get the 10 states required, but the goal should be greater if we commit to a ratification campaign. The campaign will require time, and will probably go beyond the next 5 years. We can also not rely only on writing letters to capitals and lobbying, it must encompass education and awareness, importantly education on the substantive rights on the convention. Making sure people and organizations are aware of these substantive rights. There is also a need for training, and it is training not only of individuals as to their rights, but also to lawyers and politicians on the State's obligations. It will require a lot of production and dissemination of material, regular communications with our network, keeping people informed on how the campaign is going.  

It is important to acknowledge that a ratification campaign will be complex and long.  In the ratification of the OP-CEDAW, IWRAW-AP became the Secretariat of the Campaign as a natural progression of the work that the organization had been doing.   The campaign had also an international steering committee.  An international launch was organized in New York and then it was adopted in 1999.  The Campaign objectives were:

An important aspect of the work of the campaign is to create material and information, including a website, material and factsheets, which are constantly updated. There is a listserv which is also very important and appreciated by users. To focus on different themes (health, violence against women etc). Through these listserv people share information, frustrations and challenges on different issues related to women's rights. People also find support through these listservs. The strategizing around the campaign continues on an annual basis, there are also global, regional and national consultations on the OP CEDAW. Another component is training of trainers to go back to their own countries to spread the information. Measures to increase knowledge have also been undertaken.  There is work with the CEDAW committee to ensure that during the reporting process there is encouragement and recommendation to those states that haven't signed the OP to do so, so individuals and organizations can use that in advocacy within their countries

One of the things IWRAP-AP was very concerned about is facilitating coalitions and sharing information at the national level and not only information to NGO's but also to engage and educate ministries, political parties, etc. The media is also very important. A further important component of the campaign is to ensure that the decisions of the CEDAW Committee are widely disseminated. The constitution of the Committee is very important and although members of the Committee are supposed to be independent most of them aren't. There is need to ensure that those nominated to form a part of the Committee come from a very wide range of backgrounds.  It is key to be thinking of everything we can do to support that Committee.  The CEDAW campaign is currently ongoing even at the moment.  There is material that shows examples that would be useful in the work of other organizations.  It is key to organize around the campaign to the OP-ICESCR as to ensure that it becomes an effective mechanism.

4.    Use of the Internet to Promote Grassroots Action for Ratification:  Disabled People's International (DPI) Experience with the CRPD, Steven Estey, DPI, Canada

Steven explained that DPI had been involved for several years in the work around the Disability Convention. This treaty is the first mayor human rights treaty completely negotiated in the internet age. The Internet was integral to every step of the process and it allowed the process to move quickly.  The negotiation process lasted from the summer of 2002 to the summer 2006, and there were 8 meetings of the Committee. In between that, there was work done through internet by NGO's, governments, UN officials to exchange documents and views and developed strategies. Steven suggested that the internet ought to continue being a key tool for future OP work.  DPI is an international organization with members all over the world. However, national organizations have many domestic concerns in hands and it is a real challenge to get international issues on their agendas. Using the internet you can bring those international issues to them.  During the negotiation process of the convention a daily update in English, Spanish and French was sent out through internet.  It explained what had happened, the interventions, etc.  This was sent out all over the world to 2000 people who in turn shared it with their own networks. This built impact and momentum around the convention.  It is key to keep the enthusiasm around the OP.  Internet has the capacity to keep people involved in the negotiations and keep them excited. 

5.    Moderator - Sandra Ratjen

The NGO Coalition has also aimed to focus on national mobilization in addition to the international advocacy.  This was in some cases weak, considering lack of resources.  We can, however, agree that the OP has been a great achievement. Now a challenge will be to prioritize other types of work in the future especially in relation to the crucial involvement of national organizations so they can feel ownership and relate to the work.  The Coalition also aimed to have daily updates, but sometimes with the scarce resources, this was not possible. To keep the work flexible there is no formal membership, people only had to agree in general principles. Maybe for future work it is going to be important to focus in key countries to achieve the 10 ratifications, although this should be open for discussion. And a future challenge now will be the articulation at different levels (regional, international, local and national). The strategy for ratification campaign might be prioritization in national countries to ensure it becomes priority at that level. The use of internet is something we need to improve as well as national level advocacy. 

Discussion session:

1)    Bruce Porter: A question was presented to Steven on the transition that took place between the campaigns towards the adoption of the disability convention to that to get the convention ratified? Within the campaign to get it ratified whether there was any transition between the ratification of the convention and that of the Optional Protocol. A further question was on whether there will be any interest within the disability community to attempt to link the ratification of the treaty of disabled persons with that of the OP-ICESCR, as there is some overlap while recognizing that this might not be beneficial for the disability groups as some governments might feel more comfortable with the Disability Convention than with the ICESCR.

2)    Salih Booker: The question relates to what was said about the relation between campaigns for the convention as well as ratification, how to maintain them simultaneously.  Who are the donors interested in these campaigns and what are other strategies to raise resources? There was also a point made that a ratification campaign is also a substantive campaigns which brings the opportunity to educate and mobilize about rights. Also interest in the use of the internet as a tool to bring negotiations and events from Geneva and New York to people in different countries, as organizations in Geneva might think that they are achieving this on their own and are not investing enough to spread the information and this might create distance between NGO work in Geneva even more abstract.

3)    Steven Estey explained it is a vastly different world during the drafting of the convention for the disabled community. In 2002 there were 40 organizations that participated in the drafting meetings. By 2006 there were close to 400, many participating in the process with the financial support of States. After that, the resources and support of states basically disappeared. About linking the disability treaty campaign with the one of the OP-IESCR campaign, Steven thought that it was not possible at least for now.  There is the sense in the disability group there isn't a lot of understanding about what the Optional Protocol is about; however he expressed interest in the idea.

4)    Meghna Abraham: In terms of where to focus the campaigns (on OP ratification or ICESCR ratification), hopefully the ratification campaign would be broad enough that it will address both, but where to focus will be a strategic choice that national NGOs would have to make.  In terms of resources, the OP coalition has tried getting resources with some donors though it hasn't been much success. Up to now the work is mainly done in a voluntary basis by the different organizations involved.  There were some funds for the participation of some organizations in the negotiations, but it has been a challenge to get the funds it needs.  One of the challenges is the fact that the coalition doesn't have a legal entity. The OP is a legal instrument that will allow individuals to submit complaints, but are we able to show the impact it will have on the lives of people that suffer ESCR violations? If we want to campaign and mobilize we have to show the impact.  A good example was the disability campaign and the Campaign "Our Rights' are not Optional". Bringing cases is always a last step, but the campaign changed the dialog at the national level, it focuses on domestic remedies and implementation etc. If the OP-ICESCR can do that that will be very important. Amnesty International has produced an animation on the Optional Protocol, in regard to that as well, the other question is showing the impact on the ground...

5)    Brenda Campbell: The impact after ratification will not be overnight, it is a long term thing. One important aspect of IWRAW AP 's work has been the constant flow of information analysis, country recommendations on concluding comments, analysis of jurisprudence, and focusing on different rights. IWRAWP-AP had trouble finding resources at the beginning for the OP CEDAW campaign. So they started to link the work with the promotion of CEDAW. This went on until the OP CEDAW work became visible and then governments and agencies became interested in funding some pieces of it.  In terms of arguments for ratification of the OP the intention of the government to ratify the convention was questioned. If the intention for instance is to enable realization of women's rights or ensure equality within your country, then the OP should work as a tool to assist and facilitate this. Once countries started ratifying the OP CEDAW then others wanted to join on ratification as well.    

It is important to integrate work on the OP and mainstream it into other people's work.  First target should be entry into force and then rotate to "universalization" or domestication. There are 52 sponsors to the OP resolution.  The number is not very good.   In theory any of these sponsors should be good targets for ratification. Countries that were supporters for many years did not sponsor the resolution.   

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[i] Update:  On December 10th, 2008, on the 60th Anniversary of the Universal Declaration of Human Rights, the United Nations adopted the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[ii] Shelagh Day on behalf of Women's Economic Equality Project presenting to the United Nations (UN) Committee on Economic, Social and Cultural Rights. 23 April 2001. For full quote look at power point presentation.