Statement of the NGO Coalition for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights to the Open-Ended Working Group on Discussions on the Options for an Optional Protocol, Wednesday 19 January 2005

Thank you Madame Chair for the opportunity to discuss the options for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP to ICESCR). It will come as no surprise to delegates in the room that the position of the Coalition for an Optional Protocol is that there should be a comprehensive Optional Protocol to the Covenant, which incorporates an individual communications and an inquiries procedure.

The debate on the drafting of an OP to the ICESCR has been formally occupying a space on the UN agenda since 1996/1997. It occurs amidst a broader debate on the enforcement of human rights, where options range from work towards a World Court on Human Rights to views expressed within this Working Group that there be no optional protocol, that for example, individual communications could be incorporated into a revised reporting procedure.

Madame Chairperson, the mandate of this Working Group is to consider options for an Optional Protocol. Let us, as the Coalition, be clear. To our mind, the option of no Optional Protocol is not an option. It perpetuates a historic hierarchy of rights, wrought in a different political age. It fosters an inequality of review procedures within the human-rights monitoring mechanisms. It ignores the broad-ranging implementation of economic, social and cultural rights in all regions of the world. And it denies the growing, and global, jurisprudence on economic, social and cultural rights, which has derived in large part from the increasingly comprehensive domestic mechanisms to address economic, social and cultural rights. And it ignores the needs of our shared constituents, those who suffer violations of their economic, social and cultural rights. Their need for access to justice is the imperative which drives these discussions and our participation in this process, both here in Geneva and in our own work at the national level.

In the past four years we have witnessed an undeniable momentum towards an OP to the ICESCR, culminating in the discussions at the Working Group this year which, as NGOs, we have found very productive.

As such, it is our view that the option that should be given greatest attention in the next session of the Working Group is that of an OP to the ICESCR; an OP which provides for clear mechanisms of review on the implementation of economic, social and cultural rights.

To that end, the OP should incorporate the following two elements as its broad framework.

·        One, an OP to the ICESCR should provide for individual and collective communications.

·        Two, it should incorporate an Inquiries mechanism, as per the CEDAW OP and procedures under the CAT.

Generally speaking, the OP to ICESCR should also include the following eight elements, which apply to both procedures:

·        One, the OP to the ICESCR should provide a mechanism to address the issue of international cooperation, particularly in acknowledgement of the differential level of development between countries and the impact this has on the realisation of economic, social and cultural rights.

·        Two, there should be provision for interim measures.

·        Three, there should be provision for an early warning/emergency procedures mechanism.

·        Four, the OP should provide for a mechanism to protect from reprisals against complainants.

·        Five, the OP should provide for effective remedies.

·        Six, there should be provision for follow-up measures.

·        Seven, there should be no reservations to an OP to ICESCR.

·        Eight, in relation to standing, the definition of jurisdictional nexus should also enable regional and international organisations to file communications or lodge materials to trigger an inquiry.

In relation to procedural issues associated with the individual and collective communications mechanism, the following three elements should be incorporated.

One, the OP should be comprehensive. In saying that an OP should be comprehensive, we mean that the following three components should be incorporated:

a)      it should include all the rights contained in the ICESCR, including the right to self-determination.

b)      it should include all level of state obligation – the obligations to respect, protect, and fulfil economic, social and cultural rights.

c)      it should include all components of a right, and not simply the “core” rights or “minimum rights”.

In this respect, we note the position of the African Group and GRULAC states who have called for a comprehensive approach to an OP to ICESCR, which takes as a model the ICCPR (in its inclusion of the duplicate right to self-determination provision), the communications procedure attached to the African Charter on Human and Peoples’ Rights (which takes a comprehensive approach to all rights) and the OP to CEDAW.

Two, standing should extend to individuals, groups of individuals, and organisations (including trade unions). It should also enable complaints to be submitted by or on behalf of individuals, groups of individuals and organisations.

Three, the OP to ICESCR should include provisions to address exhaustion of domestic remedies, the most recent model being those adopted under the OP to CEDAW and which provides the Committee with the capacity to offer flexibility in a limited set of circumstances where exhaustion of domestic remedies is not possible.

In relation to procedural issues associated with the Inquiries procedure, the following three elements should be incorporated:

·        One, it should include provision for fact-finding missions to the State Party concerned.

·        Two, while the cooperation of the State Party should be sought, failure to obtain such cooperation should not preclude conduct of the inquiry.

·        Three, provision to enable inquiries should be triggered by information received by States, UN agencies, individuals, groups of individuals and organisations.

Madame Chairperson, we would wish drafting to begin in earnest as soon as possible and in our view the mandate for the next Working Group must authorise drafting, particularly in light of the five-year rule for Working Groups.

Nonetheless, it is the view of the Coalition that it will be most efficient to devote the majority of the next working group agenda to a discussion of the elements of an OP. To this end, in the interim period, we encourage delegations and the Office of the High Commissioner for Human Rights to take these discussions forward in regional and international meetings, a practice we shall also pursue.

Thank you Madame Chair.