Second Open-Ended Working Group to Consider Options Regarding the Elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
Geneva, Switzerland
10-21 January 2005
Statement by IWRAW Asia Pacific on 18 January 2005
Opting for An Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
IWRAW Asia Pacific supports delegations and NGOs that have highlighted the importance and need to use the third working group meeting as an opportunity to consider specific proposals on elements and modalities of an OP-ICESCR. In our view, it is important for delegations and advocates to agree on the main principles that would guide discussions on the possible elaboration of an OP-ICESCR. Although some of the conceptual issues that have been discussed are important, it is time to consider ways to apply concepts to actual procedures that should be considered under an OP-ICESCR.
Our position is that, at this point, it is no longer constructive to discuss options that are not in line with the need to develop mechanisms for protection of victims of ESCR violations.
Since the Working Group will be considering options to be discussed and analysed at the next session, IWRAW Asia Pacific, would like to put forward the following suggestions:
1. “No OP-ICESCR” should not be considered as an Option to be discussed in the next session of this open-ended working group
It is clear that only a minority of States share the view that “not having an OP-ICESCR” is an option that should be given due consideration at this stage. In this regard, no consensus on “no individual complaints mechanism” is likely to occur until States are able to analyse the modalities and elements of an OP-ICESCR. Thus, our position is that “No OP-ICESCR” is an option that should not be discussed in the forthcoming working group.
Reasons IWRAW Asia Pacific opposes the ‘No OP-ICESCR’ option:
· A “No OP-ICESCR” approach is a denial of the obligation to provide mechanisms to seek redress to victims of violations on behalf of the international community.
· The elaboration of an Optional Protocol to the Covenant is the fulfillment of Global commitment that all human rights are universal, indivisible, interdependent and inter-related.
· A “No OP-ICESCR” approach to discussions on options would in fact be a retraction from the present status on international human rights wherein the Convention on Elimination of All Forms of Discrimination against Women, a treaty that articulates a holistic bill of rights, providing for civil-political and economic, social and cultural rights, has an Optional Protocol.
· A “No Options” approach would also perpetuates inequity between treaty-bodies and will impact on states abilities to ensure equal realisation of all human rights, on a equal status in domestic jurisdictions.
1. The need to discuss elements and modalities of an OP-ICESCR in the next working Group
The third meeting on the open-ended working group should aim to address and discuss the specific proposals on elements and modalities that have been brought forward by delegations, experts and NGOs in the past. The discussion on elements and modalities for an OP-ICESCR should use the comprehensive approach as a starting point: all rights, all obligations, as well as inquiry and communications procedures.
A Complaints Mechanism to address violations of ESCR is needed:
· A complaints mechanism by enabling the participation of victims of violations of ESC rights in the process of ensuring redress and access to justice, would address a vital gap, wherein the right bearers are not included in the process of reviewing the realisation of ESC rights within national jurisdictions.
· A complaints Mechanism would enable a review of realisation of the economic, social and cultural rights within domestic jurisdiction, from the perspective of the victims of violation of economic, social and cultural rights.
· It would enable the state parties to take complete advantage of the expertise of the Committee to ensure a more effective and comprehensive redress for the specific violations of ESC rights, in a positive environment of constructive dialogue and enhance domestic implementation, by formulating specific recommendations to the state parties to enhance or correct the steps taken by the state to ensure the rights contained in the Covenant.
· The complaints mechanism would trigger a more effective national adjudicative process of ESC rights, which would contribute to further clarification of the content of the ESC rights and greater jurisprudential development at the national and international levels.
Why use the Comprehensive approach to elements and modalities of an OP-ICESCR as a starting point?
· A comprehensive approach is essential for an effective Optional Protocol, it addresses all rights and obligations under the Covenant, all elements contained in the OP-CEDAW as well a communications and an inquiry procedure. In our view, it ensures the holistic nature of the rights and the integrity of the Covenant.
· A comprehensive approach is the only way to ensure that the victims of violations of ESC rights are able to access holistic redress, as all rights are interrelated and a violation of one cluster of rights is linked to violations of other rights.
· The “a la carte” approach should be considered as a modality of the OP-ICESCR and not as a different option. IWRAW Asia Pacific does not support an “a la carte” approach because it would contribute to a divisive understanding of the human rights treaties and obligations within national jurisdictions.
· A comprehensive approach would serve to bring about clarity on the interrelated and inter-dependent nature of rights and support a holistic realisation of ESC rights.
1. The need to ground discussions around elements and modalities of an OP-ICESCR instead of considering new options for redress of violations of ESCR
Although discussions such as improving the reporting process under the ICESCR and setting up a World Court for Human Rights violations are interesting, it is not constructive for the open ended working group to analyse them as options other than an OP-ICESCR. Many of these options can continue to be discussed in other spaces of dialogue and exchange within the UN. Our view is that, other options should be considered only if no consensus on elements and modalities of an individual complaints and investigation procedure under the OP-ICESCR is reached.