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

Madame Chair,

First, I join our thanks to those already expressed to all those involved in this Working Group.

As the Secretary-General of the International Commission of Jurists explained last Monday, it is our firmly held belief that at the end of this Working Group’s mandate, the 2006 Commission on Human Rights should instruct it to draft an Optional Protocol.  To achieve this, this Working Group will need to report to the 2005 Commission on Human Rights that it has achieved significant progress.  We believe that significant progress has been achieved here, and thus we look forward to seeing this reflected in the group’s report.

The progress I am speaking of is the widespread and generally expressed view that beyond all of the rhetoric and discussions of conceptual generalities, the option that we have been addressing in detail is an Optional Protocol that takes the form of a complaints mechanism.  The International Commission of Jurists, alone, and as a member of the international NGO Coalition, believes that the only option that we should be considering is such a mechanism: a comprehensive complaints and inquiry procedure model based on the minimum core requirements which have been clearly articulated by the NGO Coalition, as well as in our various written documents distributed and submitted as background working materials.

We believe that the next step forward in this process is to focus our time in the next Working Group on further considering the elements of this form of Optional Protocol.  At the very least, significant attention must be focused at the next Working Group to further developing the elements of the Optional Protocol that we have already been considering this year.  Indeed, we note that this process has already begun at this Working Group, and we have been pleased to participate in the many useful discussions on components and modalities of a complaints and inquiry mechanism that delegations have been engaging in both in the sessions over the last 8 days as well as in bilateral discussions.  Much time in this Working Group has already been spent discussing an Optional Protocol that takes the form of a complaints mechanism, and the various elements of such a protocol.  Relatively little time has been spent debating other options – in our opinion this is because there are no other realistic options to properly tackle what is needed, that being an opportunity for victims of rights violations to seek redress at the international level.  Certainly, no optional protocol is not an option in our view. 

It is vital that we move the discussions to a more grounded and relevant analysis of what a complaints and inquiry procedure would look like in practice, and how the various components of such a Protocol could be incorporated into a draft text by way of preliminary preparation for the drafting process itself.  In this process we can draw from much documentation already before this Working Group, such as the Committee’s 1997 draft, as well as the developments reflected in other instruments such as the Optional Protocol to CEDAW, for example.  Further ‘modernisation’ and elaboration of these elements of the Optional Protocol in an elements paper could also serve as a useful working document.  However, in light of the enormous number of issues delegates have called upon you, Madame Chair, to include in an elements paper, I reiterate that in our view the only option for an Optional Protocol that has been considered in depth at this meeting is a complaints mechanism, and therefore this should be the subject of an elements paper. We can also use the time between now and the next Working Group to further clarify these issues through the use of regional and international meetings and seminars. 

At all times we must be mindful of two important points – first the necessity of moving this discussion forward in a timely manner, and second the undeniable potential importance of this instrument for future complainants and current victims of economic, social and cultural rights violations.

On the first point, we would like to again draw your attention to the Decision 26 of April 2000 in which the Commission on Human Rights confirmed that standard-setting working groups such as this one must be mindful of the timeframe within which they should complete their task, and that this should not exceed 5 years.  When the current mandate of the working group is completed, we have already debated “options” for 2 years.  The next session’s consideration of these options must devote significant time and in-depth attention to the practical aspects of the one main option on the table.  When the mandate of this Working Group is being considered for renewal at the Commission in 2006 it will be time to accept the need for an instrument and immediately move ahead to drafting a text.

Finally, I would like to reiterate the point made by the Secretary General of the ICJ on the first day of this Working Group.  We must not forget that this Optional Protocol has the potential to positively change the lives of people around the world.  It could help those who do not have access to even some of the basic rights enshrined in the Covenant, and it is because of these people that we should be mindful of the way in which we utilise our privileged time here in Geneva, and move promptly to further consideration of the option that will be of most assistance to them – a comprehensive complaints and inquiry procedure.

Thank you Madame Chair.