Section 9: Open-Ended Working Group on the Optional Protocol to the ICECR (OEWG)
The Open-Ended Working Group on the OP-ICESCR was established in 2002 (CHR Resolution 2002/24) with a mandate to "consider options regarding the elaboration of an Optional Protocol to the International Covenant on Economic Social and Cultural Rights." In its resolution 2004/29, the Commission on Human Rights decided to renew for a period of two years the mandate of the Open-ended Working Group and to convene it for a period of 10 working days prior to the sixty-first as well as the sixty-second sessions of the Commission. With the third session of the Working Group (6-17 February 2006) the mandate assigned to it by the Commission on Human Rights was fulfilled.
Finally, in June, 2006, the Human Rights Council (body created to replace the UN Commission on Human Rights), during its first session, extended by consensus the mandate of the Working Group for two additional years (Res. 2006/3). The Working Group was given the mandate to draft an Optional Protocol to the ICESCR.
The First Draft Optional Protocol, prepared by the Chairperson of the Working Group, was presented at the fourth meeting of the working group in July 2007. It served as the bases of the negotiations for the optional protocol. The document (also available in French, Spanish, Arabic, Russian and Chinese on the website of the OEWG) is attached at the end of this page.
9.1 Information on meetings of the Open-Ended Working Group
This section contains a summary of the substantive and political issues that were raised during the four sessions of the OEWG. It is important to note that not all State parties to the ICESCR participated in the OEWG and that, in fact, a significant number of countries that were most vocal against the OP-ICESCR, such as the United States and Saudi Arabia, had not ratified the ICESCR.
9.1.1. First Session of the OEWG (23 February to 5 March 2004)
The first session of the "Open-ended Working Group on an optional protocol to the International Covenant on Economic, Social and Cultural Rights" (OEWG) was held in Geneva from 23 February to 5 March, 2004. Despite the importance of the establishment of this OEWG, the debate was poor and support for an Optional Protocol by State Representatives was weak. Fortunately, during the 60th session of the Commission on Human Rights (CHR) the mandate of the working Group was renewed for two years (Res. 2004/29)
Main Issues Raised
During the initial Working Group sessions, representatives of the ILO and UNESCO stated how a complaints mechanism for the violations of ESCR rights was not especially novel, and provided in depth analyses of existing complaint procedures in relation to economic, social and cultural rights under other covenants.
Along the same lines, Ms. Jane Connors, Chief of the United Nations Women's Unit, spoke on the drafting process and the structure of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, providing for a system of individual complaints and an inquiry procedure, which entered into force 22 December 2000. One remarkable aspect of the Optional Protocol was that it allowed for the submission of complaints on all rights contained in the Convention, including economic, social and cultural rights.
Mention was also made of existing mechanisms for the protection of ESC rights such as, the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights (the Protocol of San Salvador), and the collective complaints mechanism of the European Social Charter. Clear explanation of how these procedures complement each other were also provided during the sessions.
On the experiences of the Human Rights Committee, the supervisory body of the ICCPR, Professor Martin Scheinin, member of the Human Rights Committee and rapporteur on new communications, explained how the individual complaints mechanisms works under the First Optional Protocol to the ICCPR.
In the Working Group's session, the member of the Committee on Economic, Social and Cultural Rights, Mr. Eibe Ridel, participated actively. Building upon his experience at the Committee, he rejected several misconceptions about economic, social and cultural rights, such as that these rights are mere policy guidelines, or that they implied much higher financial cost that civil and political rights. He clearly stated that economic, social and cultural rights are not essentially different from civil and political rights.
It is important to highlight that during the discussion at the Working Group there was a common understanding on the use of the tripartite typology on State obligations: 'respect, protect and fulfill'. This analytical tool to examine the obligations imposed by all human rights seems to have been accepted by State representatives and constituted a step forward in the understanding of these rights.
The Political Resistance
The unwillingness of some states to accept the right of individuals to file complaints against violations of economic, social and cultural rights was expressed in a variety of ways, including most particularly, problems regarding the justiciability of these rights.
At times, the debate simply ignored all of the developments that have occurred in international human rights law and seemed reminiscent of that in the fifties and sixties when the adoption of the two Covenants (ICCPR and ICESCR) was debated at the Commission.
Although (a) the ideological framework of the time (Western bloc against Soviet bloc) has changed dramatically; (b) there were several international mechanisms allowing the submission of individual complaints alleging violations of economic, social and cultural rights; and (c) there was a large and growing body of case-law of domestic courts concerning ESC rights, some State representatives showed unwillingness to admit these facts.
In the ensuing discussion, questions were raised by some government representatives about the international dimension, in particular how international cooperation obligations, referred to in Articles 2(1), 22 and 23 of the ICESCR, could be addressed under the optional protocol to the ICESCR, e.g. Could this optional protocol have included an inter-State complaints procedure? Was the right to development going to be subjected to the regime of the optional protocol to the ICESCR?
Despite the efforts of some government representatives to portray the debate as an East-West ideological confrontation, the reality showed a completely different scenario. In fact, diverse States such as Argentina, Venezuela, Finland and Portugal aligned in favour of an Optional Protocol while the USA, Saudi Arabia, and India opposed it.
While for some governments' representatives the issue of international cooperation was a real concern, for others it seems that it was only a way to divert the debate. As was clear from the NGOs' submissions, the optional protocol to the ICESCR might have contributed favourably to the clarification of the existing obligations under the Covenant, including those referred to international assistance and cooperation.
Some States which strongly opposed the Optional Protocol, such as USA and Saudi Arabia were not even parties to the ICESCR.
9.1.2. Second Session of the OEWG (10 January to 20 January 2005)
The second session of the OEWG was held from 10-21 January 2005. During the second session, the debate was richer and more technical than the first year. Although some states still opposed the OP-ICESCR, e.g. USA and Saudi Arabia, there seemed to be an acceptance of the inevitability of an OP and some other states actively supported it.
Main Issues Raised
Catarina Albuquerque (Portugal) was re-elected as a Chairperson and Eibe Riedel (Expert from the Committee on Economic, Social and Cultural Rights) acted as a resource person throughout the process.
In general, it is important to highlight that during the initial Working Group sessions, there was a dialogue with three UN Special Rapporteurs (SR); Mr. Jean Ziegler, the Special Rapporteur on the Right to Food; Mr. Emmanuel Decaux, the Special Rapporteur of the Sub-Commission on Human Rights on the Universal Application of Human Rights Treaties; and Mr. Doudou Diène, Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and Related Intolerance.
The SR on the Right to Food, Mr. Ziegler, detailed the three levels of obligation of States, giving concrete examples from domestic case law. The Sub-Commission Rapporteur, Mr. Decaux, outlined the benefits associated with treaty body review of the implementation of ESCR by States Parties. The SR on Racism, Mr. Diène, said the OP-ICESCR could provide an opportunity to further elaborate cultural rights particularly within the context of new and emerging forms of xenophobia, especially actions directed at visible manifestations of culture. In response to questions from delegates, Mr. Ziegler and Mr. Decaux strongly supported a comprehensive approach to an OP-ICESCR, particularly rejecting the à la carte or selective approach to the OP-ICESCR. This approach might mean different things including, for example, making only a few of the rights of the ICESCR justiciable under the OP-ICESCR (i.e. Protocol of San Salvador approach), or allowing States to identify those rights they are willing to subject to a communications procedure, immediately assuming an obligation to take steps to broaden the number of rights subject to complaints in the future (European Social Charter approach).
Again this year, representatives of the ILO (Mr. Lee Swepston) and UNESCO (Mr. Vladimir Volodin) stated how a complaints mechanism for the violations of ESCR rights would not be especially novel and provided in-depth analyses of existing complaint procedures in relation to economic, social and cultural rights under other instruments. They stressed that the Optional Protocol to the ICESCR was not going to imply a duplication of procedures but rather that the OP-ICESCR was necessary to complement the existing mechanism which was limited in scope.
As treaty body experts, this year there was a dialogue with: Mr. Eibe Riedel (CESCR), Mr. Andreas Mavrommatis (CAT) and Mr. Goran Melander (a former member of CEDAW). They described in detail the work of their respective bodies and specifically addressed governments` concerns of duplication of procedures (particularly if CEDAW addresses sex discrimination components of ESCR), and assess violations, particularly in relation to assessment of allocation of adequate resources or issues related to international cooperation.
The experts indicated that concerns over duplication could be addressed through admissibility criteria which excluded consideration of communications already submitted to another Committee.
Experts from regional mechanisms also participated in the session: Mr. Victor Dankwa, a member of the African Commission on Human and Peoples' Rights and Mr. Henrik Kristensen from the Secretariat of the European Committee on Social Rights, Council of Europe provided interesting and useful insights on their procedures and both explained the advantages of having a new mechanism with a comprehensive approach instead of the so called à la carte approach.
Unfortunately, there was no expert of the Inter-American System which under the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights (the Protocol of San Salvador of 1988), has an individual complaint procedure for violations of some economic, social and cultural rights. However, it was agreed that an expert from this region will participate in the 2006 session of the Working Group.
The Political Resistance
The unwillingness of some states to accept the right of individuals to file complaints of violations of economic, social and cultural rights was again expressed by some government representatives in this second session. For those states which oppose the OP, e.g., the US, UK, Australia, Egypt and Saudi Arabia, the option of "No Optional Protocol" remained one of the options and they achieved that this option be included in the report requested by the Chairperson for the next session of the Working Group.
Fortunately, some other governments recognised the inevitability of the OP-ICESCR. Of the States which are supportive of the OP-ICESCR, it is important to highlight that Mexico took a very active and leading role supporting the OP-ICESCR, expressing their view that the OEWG should move to a discussion of a draft. A positive role was also played by the French Ambassador for Human Rights, Mr. Michel Douncin, who showed a constructive openness to NGOs.
As was the case in the first session, the issue of international cooperation remained a contentious issue. In the discussion, questions were raised by some government representatives about how international cooperation obligations, referred to in Articles 2(1), 22 and 23 of the ICESCR, could be addressed under the optional protocol to the ICESCR, e.g. Was this optional protocol going to include an inter-State or an individual complaints procedure? Was the right to development going to be subjected to the regime of an optional protocol to the ICESCR?
While some developing countries, e.g. Egypt and African Union countries, argued that the OP-ICESCR must include provisions on international cooperation, some "Western" states remained convinced that international cooperation is not amenable to adjudication under the OP-ICESCR. This issue required further debate at the national level and within civil society organisations and academia. As was the case during the 2005 session, for some government representatives, the issue of international cooperation was a real concern while for others it seems that it was only a way to divert the debate. As was clear from the NGO submissions, an optional protocol to the ICESCR might contribute favourably to the clarification of the existing obligations under the Covenant, including those referring to international assistance and cooperation.
Although in this session, some States continued to express concern that the content of ESCR is vague, and that a shared understanding of rights is required before drafting can begin, in general the debate was more technical and States expressed their concern on how violations will be assessed, which criteria will be used and ways to avoid duplication of procedures. Still, one of the main concerns raised referred to the alleged unacceptable intrusion of an international body, on political processes, in particular the determination of public policy options and public expenditure.
This year there was a great deal of discussion on the possibility to have the à la carte approach for the OP. The à la carte option was supported by delegations who seemed to be suggesting that this selective approach could be the means of finding a consensus. Nonetheless, it is important to stress that there was no substantive debate as to what this approach would entail. This was a major flaw because the debate between having a comprehensive approach or an à la carte approach is crucial. As mentioned there are different ways to understand a selective approach. Just to give an example, a selective approach might have implied that only a few rights were made justiciable under the OP-ICESCR (i.e. Protocol of San Salvador approach), or that all rights in the Covenant were considered justiciable but States parties would have identified those rights they were willing to subject to a communications procedure, immediately assuming an obligation to take steps to broaden the number of rights subject to complaints in the future (European Social Charter approach). Obviously these two approaches were quite different and it was important for us to know what State representative were thinking of when referring to an à la carte approach. Some à la carte formulas could have actually undermine the indivisibility of human rights and would have been extremely dangerous for the realisation of ESCR.
9.1.3. The Third Session of the OEWG (February 6-17, 2006)
The review paper prepared by the WG's rapporteur-chairwoman Catarina Albuquerque "Elements to draft an optional protocol to the International Convention of Economic, Social and Cultural Rights" (E/CN.4/2006/WG.23/2) was discussed in this session. In addition to the support by the Secretariat, Eibe Riedel, member of the Committee of Economic, Social and Cultural Rights (CESCR), was involved in the organization of the session.
The NGO Coalition for an Optional Protocol to the ICESCR also submitted a paper on the elements considered essential for a future OP-ICESCR (E/CN.4/2005/WG.23/CRP.4).
Main Issues
Just as it was the case last year, the debate was more technical and it was clear that there is increasing support for an optional protocol to the ICESCR.
The session's agenda followed the review paper prepared by the rapporteur-chairwoman. Thus, each session started with a presentation by her, which opened the debate on the following issues: (1) communications procedure; (2) inquiry procedure; (3) inter-State procedure; (4) the OP and domestic decisions on resource allocation; (5) relationship between an OP and existing mechanisms; (6) international cooperation and assistance; (7) review and evaluation of the impact an OP could have in improving domestic justiciability of economic, social and cultural rights; and (8) options for drafting an OP, including the option of not drafting an OP.
There was a rich debate and, in many cases, issues were reviewed in detail. The only exception was the issue of an inter-State procedure, which was not discussed after the rapporteur-chairwoman had introduced it. This was due to the fact that it is assumed that such a mechanism will not be necessary in a future OP.
During the two weeks of meetings, several issues were raised that should be highlighted. Following the trend in both previous years, the issue of international cooperation and assistance continues to be a crucial topic of debate. The African Group proposed the idea of creating an international "fund" to help countries enforce the Committee's recommendations.
Another interesting issue, also proposed by the African Group, was the possibility of including in the OP that regional resources must be exhausted or, otherwise, a mechanism to prevent regional mechanisms from being weakened by the creation of an OP-ICESCR.
Furthermore, the issue of à la carte options, which had led to much debate in previous sessions, was not given that much importance. Apparently, a large majority considered such options not viable for an effective protection of the rights included in the Covenant.
Finally, it should be mentioned that an expert from the Inter-American system was present at this session. He shared his views on the existing mechanisms for protecting economic, social and cultural rights in Latin America.
Political Resistance
As mentioned above, growing support for the OP was observed during the two weeks of meetings. This trend became clear since the opening session, in which, for example, the representative of Brazil, speaking for the GRULAC (Group of Latin American and Caribbean countries), expressed strong support for a comprehensive OP-ICESCR. The GRULAC expressed its desire to move forward to the next step, which was starting to draft the OP-ICESCR. They stressed that the adoption of an OP-ICESCR was the only way to place all human rights at the same level. In addition to their joint presentation, several countries of the region spoke individually in favor of an OP, including Ecuador, Chile and Mexico.
Also in the opening session, the representative of Morocco, speaking for the African Group, expressed their support for an OP-ICESCR. They stressed the importance the Group gives to a comprehensive instrument including clauses related to international cooperation and proposed exhausting regional resources as a way to preserve the integrity of regional human rights promotion and protection mechanisms.
The European Union (EU), represented by the Austrian delegate, expressed their intention to cooperate with all OEWG efforts. However, they did not include a statement supporting the initiation of a draft. This did not stop several countries in the region from expressing their direct support for an OP-ICESCR, such as Spain, Belgium, Portugal and Finland. Croatia, a country on its way to joining the EU, also expressed support for an OP.
During all sessions, it became clear that certain countries opposed an OP, such as the USA, Australia and Japan. Several other countries continued adopting another stand: although they tried to maintain a consensus, acknowledging that most States favor an OP-ICESCR, they believed it was too soon to start working on a draft. This is the position adopted by countries like Canada, Germany and the United Kingdom.
It should be highlighted that this year, Spain joined the position of Latin American countries by expressly stating its support for an OP. However, Holland, which had not participated in the debate in previous years, in this session issued a view opposed to starting work on a draft.
9.1.4 The fourth session of the OEWG (July 16-27, 2007)
At the fourth session of the working group, the First Draft Optional Protocol, prepared by the Chairperson of the Working Group, was presented. This document has set the basis for the discussions and elaborations on the future Optional Protocol to the ICESCR. Although there still seemed to be opposition to the OP-ICESCR on the part of a few states, the majority of states expressed support for a comprehensive complaint mechanism.
Main Issues
The session's agenda covered the content of the Draft Optional Protocol. Discussions on the provisions as set out in the draft were rich and lively and most issues were reviewed in great detail. Some of the issues drew considerable attention which is worth highlighting.
Scope of Application
One of the most important topics discussed was the scope of rights that should be covered by the Optional Protocol. There were proponents of comprehensive vs. limited approaches. Proposals for limited approaches took different forms:
i.) Leaving out Art.1 and therefore focusing on parts II and III of the Covenant.
ii.) The à la carte approach: "opt-out" or "opt-in" This would have either allowed states to "opt out" in relation to specified provisions, indicating which provisions of the Covenant would not have been covered by the procedure or require them to "opt in" to the procedure in relation to provisions of the Covenant which they would have specified upon becoming a party to the protocol. iii.) Allowing for reservations on certain components of rights and provisions.
iv.) Limiting the scope of the Optional Protocol to the obligation to respect and protect, leaving out the obligation to fulfill.
Collective Complaints
Many states were skeptical of the application of Article 3 and the very need for a collective communications procedure which would have given INGOs with consultative status before ECOSOC the opportunity to submit communications alleging unsatisfactory application of any of the rights set forth in the Covenant by a State Party. The majority of states called for the deletion of this article, justifying their position by the assertion that what Article 3 was designed to achieve was already adequately met in Article 2 and Article 10 (Inquiry procedure). There also was a number of countries that requested further explanation and investigation of this topic.
Interim Measures
Some states were skeptical about the concept of interim measures in general. Perhaps the most critical debate was whether the admissibility test should be passed before any consideration is given to the request of interim measures. Article 8 (Consideration of the merits) caused long discussions mainly centering around the test of reasonableness and discussions about the proposal to omit the important duty to fulfil the rights set forth in the Covenant. However, many state parties forcefully stated that nothing less than the duty to respect, protect and fulfill should be contemplated by the Working Group. While the tripartite division was useful as an analytical tool, it should not be incorporated in any version of the OP-ICESCR since it is not mentioned in the Covenant text and creates an artificial division to violations of ESCR.
The next sessions of the Open-Ended Working Group on the OP-ICESCR took place in February and April 2008. A revised Draft Optional Protocol that reflects the discussions of the 4th sessions set the basis for continuous negotiations.
9.1.5 The Fifth Session of the OEWG
The fifth session saw the development of much of the OP's technical language. In the initial days of the fifth session, there seemed to be an emerging consensus in favour of a comprehensive approach, rejecting the à la carte approach. This was despite continued strong lobbying by Canada, the U.S., and Australia for that option. Germany modified its previous support for à la carte and prepared to support a comprehensive approach. This shift altered the sense of the prevailing European view, though Denmark and Sweden continued to vigorously defend the à la carte options.
With respect to proposed language to create a difficult standard for complainants to meet, such as "unreasonableness" as the standard of review, restricting inclusion to "significant" violations of rights, or imputing a "broad margin of appreciation" to states' decisions about resource allocation, there did not appear to be any strong support for these, although these proposals in square text remained of serious concern. With respect to the role of NGOs, there was enough support for the Coalition's proposals for an "amicus" standing provision for NGOs in the consideration of communications to keep this issue alive for further discussion and possible revisions. There was not enough support at this point for a provision allowing for communications to be received from NGOs in appropriate circumstances.
There was an emerging consensus in favour of interim measures being included.
The second half of the Working Group's fifth session started on a strong note with a speech by the High Commissioner for Human Rights, in which she expressed her optimism that the work on the Optional Protocol could be completed during that week. She also re-affirmed that the adoption of the Optional Protocol would be a milestone in the history of the human rights system and sent an unequivocal message about the equal value and importance of human rights. The Chairperson of the Working Group, in her opening remarks, consolidated focus on the process coming to an end. She suggested that the Working Group do a final reading of the text of the Optional Protocol, adopting each article and sub-clause.
Egypt (speaking on behalf of the African Group) said they were happy to signify agreement to individual articles but want to make it clear that this pending agreement on the text as a whole as they are strongly in favour of a comprehensive approach and would not be willing to accept the rest of the text without this. The Chairperson agreed that "nothing was adopted until everything was adopted".
Egypt (again on behalf of the African Group) pushed again for the deletion of the last part of article 4 (1) on the exhaustion of domestic remedies that a complainant did not have to exhaust domestic remedies which were "unlikely to bring effective relief". This proposal attracted some support and it also seemed that other states were reluctant to open up a discussion in order to move forward and maintain consensus. The phrase "unlikely to bring effective relief" was therefore hastily deleted after a lunch-time informal meeting. The Chairperson had suggested adding if the complaint was "frivolous" as an additional criterion for inadmissibility of a complaint under article 4 (2) (e). This seemed to be an attempt to meet the concerns of states like Canada, New Zealand and the UK who were calling for additional admissibility criteria such as "significant disadvantage". States that supported the Canadian joint proposal stated that it did not meet the concern which had motivated their proposal - a desire to avoid overburdening the committee with trivial cases and for it have the discretion to take up more important cases.
A very negative note also concerned article 5 on interim measures. The Chairperson had taken on a UK proposal in her compromise proposals with a softer inclusion for complaints and had inserted "as may be necessary" and "in exceptional circumstances" in article 5. Despite this, some states like Norway continued to argue for a voluntary nature of interim measures. This sparked some controversy among states.
On a positive note the Working Group adopted the Chairperson's suggestion of changing the time-limit to one year (the complainant must submit the complaint within a year after the exhaustion of domestic remedies) under article 4 (2).
Articles 8 (1) (2) and (3) were discussed and there was disagreement on the content. On article 8 (1), Canada suggested adding "written information"[1] and also "made available by the parties". China suggested modifying that to "concerned parties". This proposal was supported by New Zealand. Brazil, Egypt, France, Guatemala, Mexico, Portugal were against these additions. Some of them emphasised the advice of the OHCHR not to close the door to information that be received in other forms. An informal meeting was held to discuss this proposal at the end of the day's meeting. China, Egypt, Ethiopia, and Sri Lanka wanted it to be made clear that if the Committee considered any documents from relevant UN agencies, it should also consider the observations on the state concerned on that information. Portugal, Netherlands and Eibe Reidel, the representative of the Committee on Economic, Social and Cultural Rights were opposed to this additional requirement as they thought this was already included in the UN documents. China, Russia, Liechtenstein, and Switzerland suggested clarifying that article 8 (3) should also include information from specialised agencies, funds and programmes.
The second day was a somewhat frustrating day in which there was a lot of disagreement on outstanding issues. There was some very worrying backward movement on the issue of "margin of discretion" as a result of a counter-offensive from the states that were not in favour of the OP. There was increasing frustration from friendly states at the intransigence of states such as Canada and Australia who keep proposing more negative changes, and make no significant concessions.
Article 8-4 - the critical article on the standard of review.
The Chair postponed full discussion of this article but allocated an hour to brief statements as to positions on her revised draft circulated last week, which stated:
When examining a communication under the present Protocol, the Committee shall consider, where relevant, the reasonableness and appropriateness of the steps taken or measures adopted by a State Party in accordance with article 2, paragraph 1, of the Covenant.
There was very little support for the word "appropriateness".
There was a strong, apparently orchestrated reaction against the deletion of "margin of discretion" from the earlier draft, from a broad range of "skeptical" states and they returned to an earlier position of asking for a reference to "broad margin of discretion" or "broad margin of appreciation" . Many spoke in favour of a text proposed by Canada, which reads as follows:
The Committee shall consider whether steps taken by States parties were reasonable, in conformity with Part II of the Covenant. In doing so, the Committee shall respect the broad margin of appreciation of a State party to determine appropriate policy measures and the optimum use of its resources in accordance with its domestic priorities, provided it does so in a manner consistent with its obligations under the Covenant.
36 states made statements on 8-4. Unfortunately, a number of the delegations from friendly states were not present. Egypt spoke strongly for the African group against compromise that would include a reference to margin of discretion or appreciation. The Portuguese delegate made a brilliant intervention, charactising the "margin of discretion" provision as "launching a missile at the core values of the OP-ICESCR."
19 out of 36 spoke in favour of a reference to margin of discretion/appreciation: Norway, U.K., U.S., Australia, Russian Federation, Canada, Turkey, New Zealand, Sweden, Austria, Denmark, Greece, Japan, Poland, Italy, Ireland, Iran, China, Netherlands
17 were in favour of the deletion of margin of discretion as per the Chair's proposal, or spoke against any reference to margin of discretion or appreciation: India, Spain, Germany, Lichtenstein, Finland, South Africa, Portugal, Guatamala, France,Switzerland, Brazil, Belgium, Bangladesh, Egypt (For African Group), Mexico, Algeria, Peru.
Article 4(2)(c) - Inadmissibility of communications being examined under another international procedure
The issue of other procedures that should be covered in this section, particularly ILO procedures, led to discussion of the following wording:
(c) The same matter has already been examined by the Committee or has been or is being examined under another international procedure of complaint, communication or settlement.
Participation of ILO New - Article 8-5
The ILO proposed a new 8- 5 to require the Committee to invite participation of the ILO when the Committee considers communications of matters falling within the competence of the ILO. This did not receive support.
Follow up of Views of Committee - Article 8 bis
After some discussion, it was decided to adopt the wording of the CEDAW OP, article 7(3,4,5) for this section.
Protective Measures - Article 12
The chair's draft text was adopted.
Dissemination of Information - Article 16
After lengthy discussion, it was decided that the information would be disseminated "in accessible formats, including for persons with disabilities."
Rules of Procedure - Article 17
It was agreed that the OP does not need to refer to rules of procedure. Canada disagreed, so it was put over until Wednesday morning, and formally deleted on Wednesday morning.
Informal Discussions
Article 8-1 - information considered during examination of communications
Canada's insistence that information should be restricted to written documentation submitted only by the parties (which would preclude briefs from NGO or human rights institutions independent of the parties) did not receive support. This was a BIG victory for the Coalition.
The Committee shall consider communications received under article 2 of the present Protocol in the light of all documentation made available to it, provided that this information is transmitted to the Parties concerned.
Article 8-3 - Consideration of Documentation from Other UN Bodies etc.
There was discussion about the breadth of this section. Consensus was reached on the following wording:
When examining a communication under the present protocol the Cmtte hmay consult as appropriate relevant documentation emanating from other UN bodies, specialisaed agencies, funds, programs and mechanisms, international organisations, as well as from regional human rights systems, including observations or comments by states parties concerned.
Article 9 - Inter-State Communications
Chair's draft was adopted
Inquiry Procedures - Articles 10, 11, 11 bis - Preliminary Discussion
The chair's draft received strong support. Canada continued to support deleting the inquiry procedure. A number of states, including Egypt, the U.S. and India argued for a change from "opt out" in 11 bis to "opt in", i.e. the State Party would have to have declared that it recognized the competence of the Committee in relation to inquiry procedures, rather than declaring that it doesn't. Fewer states would have "opt in" to the inquiry than would have accepted it as part of the package, so this was a serious issue. OP-CEDAW and OP-CRPD are both "opt out" procedures
The fourth day of the Working Group Session saw intense deliberations, mostly informal, on the compromise package proposal on articles 2, 4, 8 and 21 (prepared by Belgium, South Africa, Chile, Finland, Spain, Ecuador, Portugal, Germany, Mexico, France) presented by Portugal. There was also a proposal on Article 13 by the African Group. Later during the day, the Chair presented a text and asked the delegates to review the same (if needed, in consultation with the respective Capital) and come up with their positions by the following.
The standing text was a mixed bag for the Coalition - it adopted a comprehensive approach (although without Part I), along with "clear disadvantage" in Admissibility (an improvement on "significant detriment"). "Margin of discretion" was edged out from Examination of Communication but opt-in replaced opt-out for Inquiry Procedures. The proposed draft provided significantly new language specifically under Articles - 2, 4 bis, 5, 8.4, 10, 13 and deletion of Articles 11 bis, 14 and 21.
Relevant changes were as follows - -
Article 2
Communications Communications could be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victim of a violation of any of the rights and obligations set forth in Parts II and III of the Covenant by that State Party. Where a communications was submitted on behalf of individuals or groups of individuals, this would be with their consent unless the author could justify acting on their behalf without such consent.
Article 4.2(e): Admissibility
A new admissibility criterion was added to 4.2(e): it is manifestly ill-founded, not sufficiently substantiated or exclusively based on reports disseminated by mass media.
Article 4 bis: Communications not revealing a clear disadvantage (new paragraph)
The Committee may, if necessary, decline to consider a communication where it does not reveal that the author has suffered a clear disadvantage, unless the Committee considers that the communication raises a serious issue of general importance.
Article 5: Interim Measures
At any time after the receipt of a communication and before a determination on the merits has been reached, the Committee may transmit to the State Party concerned for its urgent consideration a request that the State Party take such interim measures as may be necessary in exceptional circumstances to avoid possible irreparable damage to the victim or victims of the alleged violations.
Article 8 Examination of communications:
1. The Committee shall examine documentation received under article 2 of the present Protocol in the light of all documentation submitted to it, provided that this documentation is transmitted to the Parties concerned. 2. The Committee shall hold closed meetings when examining communications under the present Protocol. 3. When examining a communication under the present protocol, the Committee may consult, as appropriate, relevant documentation emanating from other United Nations bodies, specialized agencies, funds, programmes and mechanisms, and other international organizations, including from regional human rights systems, and any observations or comments by the State party concerned. 4. When examining communications under the present Protocol, the Committee shall consider, as appropriate, the reasonableness of the steps taken by the State Party in accordance with Part II of the Covenant. In doing so, the Committee shall bear in mind that the State Party may adopt a range of possible policy measures for the implementation of the rights set forth in the Covenant.
Article 10: Inquiry Procedure
A State Party to the present Protocol may at any time declare that it recognizes the competence of the Committee provided for under this article.
Article 13: International Assistance and Cooperation
A trust fund shall be established in accordance with the relevant procedures of the General Assembly, to be administered in accordance with the financial regulation regulations and rules of the United Nations, with a view to provide expert and technical assistance to States Parties, with the consent of the State Party concerned, for the implementation of the rights contained in the Covenant, thus contributing to building national capacities in the area of economic, social and cultural rights in the context of the present Protocol.
The fifth day was spent mostly in informal corridor discussions, in attempts to garner consensus over the Chair's text as distributed the previous. It became clear from these discussions that some changes were necessary in order to make the text agreeable by consensus. The Chair commenced the session by outlining the changes that were made to the text, before putting it to the floor to ensure there were no objections before it was agreed that the revised text could be transmitted to the Human Rights Council..
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