| 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
Parts I, II, III of the ICESCR and Elements of an OP-ICESCR
January 14, 2005
IWRAW Asia Pacific
joins with States and other Non-Governmental Organisations who have
expressed support for the elaboration of an Optional Protocol to
the International Covenant on Economic, Social and Cultural Rights
which contains an individual complaints procedure and an inquiry
procedure which would relate to all the rights set forth in the
Covenant.
Although the
discussion today focuses on Part II of the Covenant, our statement
in relation to the Optional Protocol, will inevitably make reference
to Parts I and III. As it has already be pointed out by others,
any attempt to apply the Covenant to actual situations is strengthened
when seeing it as a holistic document that cannot be divided, especially,
when considering options and elements for an OP-ICESCR.
We will take
this opportunity to discuss the ways substantive areas of the Covenant
can relate to procedural elements that would have to be taken into
account when drafting an Optional Protocol:
4. In relation
to Article I of the International Covenant on Economic, Social and
Cultural Rights, an important dimension of the right to self-determination
is that it is impossible to justify violations of ESCR by the State
on the ground that a group may be in conflict with the State, because
of a political claim to self-determination. For example, at minimum,
a government policy or practice that results in the denial of access
to and availability of basic health services and primary education
to communities seeking self-determination would clearly be discriminatory
and as such, violate substantive rights contained in the Covenant.
In such situations, groups seeking self-determination and targeted
for violations of ESCR on that ground, should be able to submit
collective complaints under the OP-ICESCR.
From the perspective of individuals and groups that are targeted
and discriminated against because of their economic, social or cultural
status, the OP-ICESCR must ensure protection and an opportunity
for seeking redress. Moreover, it is because of this reason that
groups and individuals that allege that they have been victims of
violations of ESCR must be accorded standing under the Optional
Protocol.
2. In regard to the question of international cooperation and assistance
under the Covenant, we support the delegations that have begun to
consider the ways this issue may relate to modalities and elements
of the procedures that would be established under the OP-ICESCR.
In our view, the obligation to use resources allocated and received
from international assistance in ways that further the domestic
implementation and realisation of the rights and principles set
forth in the Covenant is an obligation that extends to both, donor
and recipient States.
5. Part II of the Covenant is extremely critical to the discussion
on violations of ESCR that should be addressed under an Optional
Protocol. Articles 2.2 and 3 relate to the principle of Non-discrimination
and should continue to be seen as inherently linked to the notion
of substantive equality -which has now been referred to by the Committee
in draft GC 16 on Article
3. The notion
of substantive equality is a useful means to ensure that all individuals
belonging to communities or groups that are disadvantaged are guaranteed
equal opportunity, equal access to opportunity and equal benefits
from the results of laws, policies and programmes aimed at creating
an enabling environment for their human, social and economic development.
In this regard, we submit that equality and non-discrimination are
some of the cross-cutting principles that should inform the development
of elements of the procedures under the OP-ICESCR as they would
relate to all rights contained in Part III.
It is also important
to note that although the principle of non-discrimination is contained
in most human rights treaties, in our view, the ICESCR provides
more room for addressing situations of intersectional discrimination.
For example, although CERD and CEDAW refer to racism and gender
as main grounds of discrimination, the ICESCR gives us room to analyse
the compounded affects of one or more forms of discrimination, and
explore different constructions of inequality as they specifically
relate say, to poverty and health status.
In relation
to the process of drafting the Optional Protocol, the exercise of
exploring means and ways to establish an effective mechanism of
“last resort” at the international level is likely to
give further momentum to on-going discussions on legal and non-legal
remedies for violations of economic, social and cultural rights
already taking place at the national level. In this regard, the
admisibility criteria for individual complaints under the OP-ICESCR
is one of the key discussions that would enable national mechanisms
for the protection of human rights to carry out a constructive review
of the efficiency and impact of existing remedies in the context
of ESCR violations.
In relation
to Article 2.3, our position is that, at minimum, alleged victims
of violations of the core rights set forth in the Covenant that
are “under the jurisdiction” of a State Party should
be able to bring individual complaints under the OP-ICESCR.
4. In relation
to Part III, we want to re-emphasise that in our view, the OP-ICESCR
should enable the protection and redress to the victims of violations
of any of the rights contained in the Covenant. In this regard,
we support the view that when analysing and applying the Covenant
to specific violations it is impossible to separate levels of state
obligation.
5. In order to ensure that the Optional Protocol is an effective
mechanism, with capacity to provide redress for violations of human
rights articulated in Parts I, II and III of the Covenant, the following
elements must be considered:
- Extensive
protection to the alleged victims/claimants: Taking into
account that the majority of the victims of ESCR violations are
already in a position of disadvantage and as such are many times,
vulnerable to further abuse, the individual complaints mechanisms
under the OP-ICESCR should ensure that alleged victims/claimants
are not ill treated or intimated as a consequence of seeking redress
at the international level. For example: A situation in which
an individual complaint is submitted by a small indigenous community,
whose members, as a direct result of the complaint, have been
threatened by the local police and now fear communal attacks might
instigated against them.
- Interim
measures: Since the nature of many of the violations
of ESCR is repetitive and continuous, it is important to consider
the need for the explicit inclusion of interim measures aimed
at avoiding irreparable harm to alleged victims/claimants. For
example: if there is a complaint on behalf of patients in a mental
health institution in which most are in a critical stage if malnourishment,
the Committee should be able to recommend measures aimed at preventing
patients from dying from hunger.
- Grave
and/or systematic violations: The Optional Protocol should
enable the Committee to investigate violations of rights under
the Covenant which are grave and/or systematic. For example: if
the Committee receives information from Special Rapporteurs and
other reliable sources alleging that in State x, a local company
is polluting the water of a community in order to evict them.
- The
“No Reservations” clause: Given the “optional”
nature of the Protocol, no reservations should be permitted to
it, as not only will it reduce from the international legal standard
set by the OP to CEDAW and other Optional Protocols, but also
fragment the inter-relatedness of rights, which must be accepted
in totality. Also, in practice, it is impossible to separate violations
right-by-right for example, a violation of the right to health
may also link to violations of other rights that relate to determinants
of health such as the right to water, the right to food, freedom
from violence, etc.
- Remedies:
The types of remedies that could be recommended by the Committee
under the inquiry and communications procedures under the OP-ICESCR
should be discussed at length. This discussion is likely to enable
the working group to develop a more clear position and understanding
of the quasi-judicial nature of the procedures.
Back
to top
This
page was last updated on January 30, 2005
“IWRAW
Asia Pacific is an independent, non-profit, NGO in Special consultative
status with the Economic and Social Council of the United Nations.”
©IWRAW Asia Pacific
Contact Us | Site
Map |
