Statement by the International Commission of Jurists to the Open-Ended Working Group to Consider Options for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

Delivered on 14 January 2005

Madame Chair,

In our previous interventions we have stressed the importance of adopting a comprehensive approach in an Optional Protocol, and I would like to reiterate the importance of this approach when considering Parts I & II of the Covenant.  We have also been pleased to hear from the many states who have also expressed their support for such an approach.  This afternoon I will limit my intervention to overviewing the International Commission of Jurists’ analysis of Article 2(1), in particular the issue of progressive realisation and international cooperation and assistance.

The requirement of “progressive realisation” in Article 2(1) reflects the fact that full realisation of all ESC rights will generally not be able to be achieved in a short period of time.  However, the “progressive obligation” component of the Covenant does not mean that only once a State reaches a certain level of economic development must the rights established under the Covenant be realised.  The duty in question obliges all States parties, notwithstanding their level of national wealth, to move towards the realisation of ESC rights.  As the Committee explained in General Comment 3, and I quote, “even in times of severe resources constraints, whether caused by a process of adjustment, of economic recession, or by other factors, the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes”

The concept of progressive realization is not to be misinterpreted as depriving Covenant obligations of all meaningful content as ESC rights realization objectives were designed to be flexible, reflecting the realities of the real world and attendant difficulties involved for countries in ensuring the full realization of said rights.  The progressive realization concept thus imposes an obligation to move as expeditiously and effectively as possible towards that goal.  Steps to bring about the full realization of ESC rights should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant. 

The progressive realisation concept should never be interpreted as allowing States to defer indefinitely efforts to ensure the enjoyment of the rights laid down in the Covenant, as certain obligations are intended to be implemented immediately.  The immediate application stipulation would apply especially to Covenant non-discrimination provisions and the obligation of States parties to respect and protect ESC rights.

The obligation contained in ICESCR article 2(1) thus has to be read as one relating to States parties taking steps to achieve the realisation of Covenant rights.  One method under which ESCR rights may be realised is through international assistance and co-operation. 

In the discussion today many questions have been raised about whether the inclusion of the phrase "international assistance and cooperation" in article 2(1) of the Covenant may allow a complaint to be brought under the proposed Optional Protocol against States parties for not providing international assistance and cooperation towards the realisation of Covenant rights.

Through General Comment No. 3, and again as expertly explained by Professor Riedel, the Committee has stressed that international co-operation is essential for the realisation of economic, social and cultural rights, and it is especially incumbent on developed nations in a position to assist developing nations to facilitate this cooperation.

However, as the primary purpose of a complaints procedure would be to allow individual and collective victims of violations to access to an international remedy, obligations of international cooperation would, at most, form the backdrop of such violations, and primary responsibility for any violation would of course lie with the state under whose jurisdiction the violation occurs. 

In practicality, we believe it would be difficult to find a casual link between alleged violations of individual/group economic, social and cultural rights and the non-provision of international cooperation by particular States parties.  However, the lack of such cooperation and assistance could be viewed as a mitigating factor with regard to the non realisation of ICESCR obligations by developing nations, and there may be other exceptional circumstances in which international assistance and cooperation could be taken into account at the hearing of an ICESCR Optional Protocol complaint.

As the NGO Coalition has already expressed, we encourage states to consider this issue further in the practical context of a draft Optional Protocol.

Thank you Madame Chair.