i. the international covenant on economic, social and

AN OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT

ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Expert Seminar organised by the Institute for Human Rights,

Catholic University of Leuven

Leuven, Belgium

30 November 2001

Edited by Wouter Vandenhole

Leuven

Institute for Human Rights

Catholic University of Leuven

February 2002

AN OPTIONAL PROTOCOL

TO THE INTERNATIONAL COVENANT

ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Expert Seminar organised by the Institute for Human Rights,

Catholic University of Leuven

Leuven, Belgium

30 November 2001

Edited by Wouter Vandenhole

Leuven



February 2002

KATHOLIEKE

UNIVERSITEIT

LEUVEN


Faculty of Law


Tiensestraat 41

B-3000 Leuven

Belgium

Tel. + 32 16 32 52 13

Fax. + 32 16 32 54 66

Website: http://www.law.kuleuven.ac.be/pubrecht/rvdm /

Table of Contents

Introduction

Working Paper: An Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

Wouter Vandenhole

Comments on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

Wouter Vandenhole

The Role of the UN Committee on Economic, Social and Cultural Rights in Strengthening Implementation and Supervision of the International

Covenant on Economic, Social and Cultural Rights

Fons Coomans

Justiciability of Social and Economic Rights

Gunter Maes

Lobbying for an Optional Protocol - A perspective from an International Human Rights

Organisation

Michael Windführ

Leuven Statement on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

Explanatory Report to the Leuven Statement

Wouter Vandenhole

Addendum to the Working Paper on the International Obligations of States

Relating to Economic, Social and Cultural Rights

Wouter Vandenhole

Annex 1. List of participants

Annex 2. Program of the expert seminar

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5

29

41

55

75

85

87

93

95

97

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Introduction

The seminar on an Optional Protocol to the International Covenant on Economic,

Social and Cultural Rights was organised by the Institute for Human Rights of the

Faculty of Law of the Catholic University of Leuven, on the initiative of 11.11.11,

Coalition of the Flemish North South Movement.

Background

Growing attention has been paid in recent years to economic, social and cultural rights.

Also, an increasing number of development organisations has adopted a human rights approach to development. So has 11.11.11.

On request of its partner organisations in the South, 11.11.11 has decided to focus its lobby work i.a.

on the adoption of an Optional Protocol to the International Covenant on

Economic, Social and Cultural Rights. It has asked the Institute for Human Rights to offer research assistance.

Context

The expert seminar fits into a larger consultation and exchange process of human rights and development experts. From 26 October onwards, the subject was being discussed in an electronic discussion group (see http://www.11.be/rights). The expert seminar of 30 November was meant to continue that di scussion “face to face”. Next, at the second World Social Forum in Porto Alegre (Brazil) in early 2002, meetings will be organised in order to allow non-governmental organisations from all over the world, and especially from the South, to participate in and to contribute to reflection on the issue.

Finally, a revised paper, taking into account the outcome and comments of the three consecutive discussion platforms, will be presented to the UN Commission on Human

Rights in April 2002.

For more information, contact Wouter Vandenhole by phone (+ 32 16 32 51 92), fax (+

32 16 32 52 55) or e-mail (wouter.vandenhole@law.kuleuven.ac.be).

Expert Seminar on an OP to the ICESCR – 30 November 2001 – Institute for Human Rights K.U.Leuven

5

Working Paper

An Optional Protocol to the International Covenant on

Economic, Social and Cultural Rights

Wouter Vandenhole

Institute for Human Rights, Catholic University of Leuven (Belgium)

INTRODUCTION

1. In the paper Filling the gap. Development and economic, social and cultural rights:

An NGO challenge (March 2000) is it argued that “International and regional fora offer oppo rtunities to challenge violations of ESC rights.” (p. 21). In the same paper the following statement can be found also: “The ESC Committee is not, as yet, competent to hear individual complaints, but there is an on-going international campaign for the adoption of an Optional Protocol to the ICESCR. The Optional Protocol would contain a right of individual and group petition in cases of violations of ESC rights. The Lima and

Manila seminars both identified the adoption of an Optional Protocol as an action po int.” (p. 22).

In this paper, the issue of an Optional Protocol (OP) to the International Covenant on

Economic, Social and Cultural Rights (ICESCR) is further explored. In a first section, the ICESCR is briefly presented. The second session deals with the moot points concerning economic, social and cultural rights (ESC rights): are ESC rights justiciable and what are the obligations for states or other actors? In a third section, the elaboration process of an OP to the ICESCR, providing for an individual complaint mechanism is briefly outlined, as well as the draft OP presented by the Committee on

Economic, Social and Cultural Rights. The fourth section is more action-oriented. It lines out the issues 11.11.11 could focus on in its lobby-work and it examines the opportunities and limits of an OP.

I. THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL

RIGHTS

2. The International Covenant on Economic Social and Cultural Rights was adopted by the United Nations General Assembly in 1966, simultaneously with the International

Covenant on Civil and Political Rights (ICCPR). The ICESCR entered into force on 3

January 1976 after ratification by 35 States.

3. The initial idea was to draft one covenant in line with the Universal Declaration on

Human Rights of 1948, containing both civil and political rights, and economic, social and cultural rights. This original intention was however thwarted by the ideological discussion on the nature of human rights between East and West in the context of the

Cold War. The West basically argued that ESC rights could not be placed on the same footing as civil and political rights, as ESC rights were not legally justiciable.

This ideological quarrel led to the adoption of two covenants: the ICCPR, containing the so-called rights of the first generation (“blue rights” going back to the American and

French Revolution in the 18 th century), and the ICESCR, containing the so-called rights of the second generation (“red rights” going back to the Mexican and Russian

Revolution in the beginning of the 20 th century).

Expert Seminar on an OP to the ICESCR

– 30 November 2001 – Institute for Human Rights K.U.Leuven

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Being treaties, both International Covenants are legally binding for states after ratification. So far, the ICESCR has been ratified by 145, and the ICCPR by 147 states.

Rights covered by the ICESCR

 the right to self-determination , by virtue of which peoples freely determine their political status and freely pursue their economic, social and cultural development

(Article 1)

 the equal right of men and women to the enjoyment of all economic, social and cultural rights (non-discrimination) (Article 3)

 the right to work , which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts (Article 6)

 the right to the enjoyment of just and favourable conditions of work , which ensure (a) remuneration which provides all workers as a minimum with fair wages and equal remuneration for work of equal value, and with a decent living for themselves and their families; (b) safe and healthy working conditions; (c) equal opportunity to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; and (d) rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays (Article 7)

 the right to form trade unions and to join the trade union of one’s choice; the rights of trade unions to establish national federations, and the right of the latter to form or join international trade-union organisations; the right of trade unions to function freely; and the right to strike (Article 8)

 the right to social security , including social insurance (Article 9)

 the right to maternity leave ; the protection of children and young persons from economic and social exploitation, and the prohibition of child labour (Article 10)

 the right to an adequate standard of living for oneself and one’s family, including adequate food, clothing and housing, and to the continuous improvement of living conditions (Article 11)

 the right to the enjoyment of the highest attainable standard of physical and mental health (Article 12)



(a) the right to education : primary education compulsory and available free to all; secondary education generally available and accessible to all; higher education equally accessible to all; (b) freedom of parents to choose schools other than those established by the public authorities; freedom to establish and direct educational institutions (Article 13)

 the right to take part in cultural life , to enjoy the benefits of scientific progress and the right of the author to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production (Article 15).

All are individual rights, except for the first one, namely the right to self-determination, which is a right of peoples.

4. Notwithstanding their equal recognition de jure , the ICCPR and the ICESCR have been treated differently de facto from the beginning. The differential treatment is most obvious in the weaker means of monitoring under the ICESCR.

Under the ICCPR, the Human Rights Committee, composed of independent experts, was immediately set up to supervise the Covenant. The Human Rights Committee can monitor state compliance with the Covenant in three different ways: through mandatory periodic reporting by State Parties (Article 40 ICCPR), through an optional interstate complaint procedure and a friendly settlement procedure (Articles 41-42 ICCPR), and through an individual complaint procedure (1966 Optional Protocol).



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5. No independent supervisory body was created under the ICESCR: the formal supervisory body is the Economic and Social Council of the UN (ECOSOC), which is a political body (Article 16 ICESCR). After years of ineffective monitoring by a politically composed Working Group, a committee of independent experts was established in

1985 by an ECOSOC resolution: the Committee on Economic, Social and Cultural

Rights.

1 It held its first session in 1987.

Furthermore, only one monitoring mechanism is provided for, namely the submission of reports by states (Article 16 ICESCR). Since 1988, states are expected to report every five years on the entire Covenant in one single and comprehensive report. Neither an inter-state nor an individual complaint procedure is currently available. However, discussion on the establishment of an individual complaint procedure through the adoptio n of an OP to the ICESCR has taken place since the early ’90s. The issue of an

Optional Protocol will be dealt with more extensively in section III, but first we turn to some of the moot points regarding ESC rights.

II. MOOT POINTS CONCERNING ESC RIGHTS: JUSTICIABILITY - OBLIGATIONS

6. The current discussion on an OP to the ICESCR, providing for an individual complaint procedure, is fraught with largely the same ideological prejudices as those with regard to the legal nature of ESC rights. In other words, the opposition against an individual complaint procedure is informed by basically the same arguments as the opposition against ESC rights was and still is. As a consequence, the hurdles to overcome are far and foremost of a political, not of a philosophical or legal nature. On the other hand, although the challenge is predominantly to make the political climate more favourable and to generate a political will to take ESC rights forward, in the debate use is often made of legal arguments. Therefore, development in legal doctrine and clarification of legal issues may help to counter certain political arguments.

7. The opposition to an individual complaint procedure seems to be really informed by the fear - seldom explicitly mentioned - of imposing uncontrollable financial burdens upon the States, and is intrinsically linked with the international political conflict, first between East and West, now between North and South (see ARAMBULO 1999, p. 97).

A. NATURE AND JUSTICIABILITY

8. The arguments invoked against an individual complaint procedure revolve around the nature of ESC rights (are they human rights or not?) and their alleged nonjusticiability.

Justiciability has been defined as “a right’s amenability to be subjected to the scrutiny of a court of law or another judicial or quasijudicial entity” (ARAMBULO 1999, p. 55). It is therefore considered to be a fluid concept: its meaning depends on the interpretation of the right concerned by the court or another supervisory body. The expression

“enforceability” is sometimes used as a synonym, and sometimes used with a different meaning. There seems to be a tendency however to attribute to the phrase

“enforceability” a wider meaning, including the actual implementation or effectuation of a (quasi-)judicial decision.

9. In what follows, the main arguments against ESC rights are briefly mentioned. Each time, elements for rebuttal of the argument are provided for.

1 As they are resolution-based, the powers of the Committee on Economic, Social and Cultural

Rights are rather weak and temporary. The ECOSOC can change at any time the composition, organisation and procedures of the Committee.



8

Argument 1: ESC rights are not human rights

10. There is still a rather widespread conviction that ESC rights are simply not human rights. Only civil and political rights are considered to be real human rights (based on the right to life, freedom and property), as the individual holds a central position in these rights. On the contrary, ESC rights are judged to be merely policy guidelines or even utopian aspirations, but not (legal) rights for individuals.

11. Counter-arguments refer to the fact that the ICESCR and the ICCPR alike are legally binding instruments, so that ESC rights are as much human rights as civil and political rights are. It has been argued also time and again that the protection and preservation of human dignity relate as much to ESC rights, such as the right to an adequate standard of living and the right to food for example, as to civil and political rights, such as the freedom from torture or the freedom of expression.

Argument 2: ESC rights are not legal rights

12. Sometimes it is argued that ESC rights might be moral rights, but that they are not legal rights, as they are not justiciable in international law.

13. This position can be refuted by arguing that the lack of justiciability of ESC rights is caused by political reasons, not by reasons of international law. Moreover, human rights do not derive their quality of human rights from their justiciability: t he “absence of remedies may weaken the real enjoyment of rights but does not derogate them from their quality as rights.” (HENKIN 1981, p. 270).

Argument 3: ESC rights are a different type of rights

14. It is often claimed that ESC rights are relative rights and that they have a variable content. Moreover, as their realisation would require positive action and resources, implying that their implementation cost would be much higher than the one for civil and political rights, it is often submitted that their realisation can only take place progressively.

Civil and political rights on the other hand are said to be absolute and fundamental, and considered to have an invariable content. They are believed to entail basically negative obligations.

This argument has i.a.

been invoked by Sweden in its comment on the draft Optional

Protocol.

15. The above argument is countered by the fact that civil and political rights too require positive action. “The reality is that the full realization of civil and political rights is heavily dependent both on the availability of resources and the development of the necessary societal structures.” (ALSTON & QUINN 1987, p. 172). The example often given refers to the right to a fair trial, which requires e.g. establishing and maintaining a functioning judicial system or an adequate penitentiary system. Moreover, the

European Court of Human Rights has clarified a number of positive obligations for states flowing from the (civil and political) rights under the European Convention. In other words, the difference between the two sets of rights is more a matter of degree of required positive action for the realisation of the rights concerned than a difference in nature.

Argument 4: ESC rights are vague norms

16. The most legally technical argument is that ESC rights are vague norms, containing only vague obligations for states. That normative vagueness would imply a considerable margin of appreciation for the state concerned, and would render the justiciability of ESC rights unlikely and inopportune.



9

This argument has been invoked i.a.

by Canada in its comment on the draft Optional

Protocol.

17. In order to counter this argument of normative vagueness, attention can be drawn in the first place to the considerable efforts made by scholars and the Committee on

Economic, Social and Cultural Rights to clarify the content of ESC rights and the obligations they entail:



the content of certain rights, i.a.

the right to food, the right to education, the right to adequate housing, the right to the highest attainable standard of health, has been elaborated on in academic studies, reports of independent experts and General

Comments of the Committee.

 the minimum threshold approach aims at establishing a “bottom-line” beneath which concrete compliance by a State with a human right may not fall. The minimum threshold is a relative, that is to say a national or regional, benchmark, meant to help formulate the policy guidelines for the measures a state needs to take in order to comply with its obligations under the ICESCR. The Committee has introduced a similar concept in its General Comment no. 3, namely “the minimum core obligation”, being the obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights (§ 10).



the determination of a minimum core content purports to reveal that element or part of a human right that serves as the justification for its existence. The minimum core content is the essence and core substance of a right, without which that right and its fulfilment or enjoyment would have no meaning, and which may therefore not be violated. For that reason, it is a general and universal minimum standard.



a typology of state obligations has been developed: a right may contain obligations to respect, protect and fulfil (see further no. 30 and following).



A detailed list of violations of ESC rights through acts of commission or omission has been established.

2

18. In the second place, it has been argued repeatedly that an individual complaint procedure may precisely help to clarify the meaning and obligations of ESC rights.

19. In sum, although there is not yet full doctrinal consensus on the nature of ESC rights and their justiciability, there seems to be growing academic interest in the elaboration of ESC rights and increasing recognition of at least a degree of justiciability.

The theoretical point of departure lies in the 1948 consensus (as it appears from the

Universal Declaration on Human Rights, which contains ESC rights as well as civil and political rights) on the indivisibility and interdependence of all human rights. The indivisibility and interdependence of all human rights was confirmed by the Vienna

World Conference on Human Rights in 1993. Moreover, one can question “the extent to which the concept of economic, social and cultural rights can and should be artificially moulded so as to fit a predetermined conception of rights which by definition has been tailored to reflect the perceived characteristics of civil and political rights.”

(ALSTON & QUINN 1987, p. 160).

Reference to the national and regional recognition of ESC rights as human rights and of their justiciability on these levels may add strength to the case for an individual complaint procedure. First of all, in a number of states constitutional recognition of economic, social and cultural rights can be found. Secondly, it can be pointed out that the possibility of submitting complaints on the violation of ESC rights is neither new nor innovative as it exists already on the national and regional level. Within the Council of

Europe, an OP to the European Social Charter allows for collective complaints. Within

2 See §§ 14-15 of the Maastricht Guidelines on Violations of ESC rights, agreed upon by a group of experts on the occasion of the 10 th anniversary of the Limburg Principles in 1997.



10 the Inter-American System, the San Salvador Protocol allows for the submission of individual complaints to the Inter-American Commission and Inter-American Court with regard to trade union and association rights, and the right to education.

Reference can also be made to the adoption of the OP to the Convention on the

Elimination of Discrimination against Women (CEDAW) in 1999 (which entered into force on 22 December 2000). This protocol allows for an individual complaint procedure for all the rights set forth in the CEDAW, civil and political rights as well as economic and cultural rights. The issue of justiciability was debated only in the beginning of the discussions by Governments, and became a non-issue ultimately.

In addition, well-developed arguments are available to rebut the classical opposition against ESC rights and an individual complaint procedure (see higher). Therefore, It cannot be argued that there exists insurmountable legal obstacles to an individual complaint procedure. At the end of a workshop on the justiciability of ESC rights held in

February 2001, it was correctly concluded once more that the main obstacle to the adoption of an OP was political.

B. OBLIGATIONS

20. A second important and politically sensitive issue, closely related to the question of justiciability, is the obligations that ensue from the ICESCR.

Article 2 ICESCR reads: “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present

Covenant by all appropriate means, including particularly the adoption of legislative measures.”

21. In what follows, the different elements of this article will be examined. For the interpretation of article 2, use is made predominantly of the interpretation given by the

Committee in its General Comment no. 3 ( The nature of States parties obligations , 14

December 1990), 3 and by the Limburg Principles.

4

22. First, the general obligation for domestic states flowing from the ICESCR is one “to take steps”. The obligation to take steps is a looser one than the obligation to “ensure” referred to in the ICCPR.

The obligation to take steps has been qualified as an obligation of conduct. The obligation of conduct points to a specific obligation, i.e. a behaviour the state should follow or abstain from. “The obligation of conduct requires action reasonably calculated to realise the enjoyment of a particular right.” (Maastricht Guidelines, § 7). The obligation of result on the other hand is a broad obligation, which allows for a discretionary margin for states how to achieve the result. It is less concerned with the way in which results are avoided or achieved, and more with the results the state should avoid or achieve (EIDE, 1989, 42). “The obligation of result requires States to

3 General Comments are meant to make the experience gained by the Committee through the examination of state reports available for the benefit of all state parties to the ISCER. Although they are not binding, they represent an authoritative interpretation of the provision(s) concerned.

4 The Limburg Principles on the Implementation of the International Covenant on Economic,

Social and Cultural Rights are principles which a group of distinguished experts in international law agreed upon during a meeting in Maastricht from 2 to 6 June 1986. They were believed by the participants to reflect the then present state of international law, except when otherwise indicated.



11 achieve specific targets to satisfy a detailed substantive standard.” (Maastricht

Guidelines, § 7).

However, it has been stressed that the undertaking to take steps is of immediate application (Limburg Principle no. 16; General Comment no. 3, §§ 1-2).

23. Secondly, article 2 states that a state has to act by all appropriate means. From the text, it not deducible that incorporation into national law, legislation or the provision of judicial remedies is required.

The Committee has clarified however in the first place that “in many instances legislation is highly desirable and in some cases may even be indispensable” (General

Comment no. 3, § 3). Limburg Principle no. 18 asserts without reservation that legislative action is required if existing legislation is in violation of the obligations assumed.

Secondly, the Committee has argued that legislation is not sufficient: the adoption of administrative, economic, financial, educational and social measures, the establishment of action programs, the creation of appropriate bodies and the establishment of (judicial) procedures may equally be necessary (General Comment no. 3, § 4).

24. Thirdly, the requirement of “progressive achievement” reflects the inevitably contingent nature of state obligations due to the dependence on the availability of resources. It holds the recognition of the fact that full realisation of all economic, social and cultural rights will generally not be able to be achieved in a short period of time

(General Comment no. 3, § 9).

This requirement should however not be interpreted as implying for States the right to deter indefinitely efforts to ensure full realisation (Limburg Principle no. 21); it imposes an obligation to move as expeditiously and effectively as possible towards the goal of full realisation of the rights in question.

Moreover, according to Limburg Principle no. 22, the obligation of progressive development exists independently of the increase in resources; it requires effective use of resources available.

Finally, any deliberately retrogressive measures require the most careful consideration and need to be fully justified by reference to the totality of the rights provided for in the

Covenant and in the context of the full use of the maximum available resources

(General C omment no. 3, § 9).

25. Fourthly, “to the maximum of its available resources” indicates that the level of a country’s economic development basically determines the level of its obligations. At the same time, it is accepted that the word “its” refers to both internal and external resources (Limburg Principle no. 26; General Comment no. 3, § 13).

It has however been indicated that there exists a bottom-line, beneath which a state cannot go, irrespective of the level of its economic development.

The Committee h as clarified that there is a “minimum core obligation” incumbent on each state to ensure the satisfaction of, at the very least, the minimum essential levels of each of the rights. Furthermore, “in order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligation s. […]



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[E]ven where the available resources are demonstrably inadequate, the obligation remains for a State party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances.” (General Comment no. 3, § 10-11).

The Limburg Principles add two focuses of attention. In the first place, attention should be paid to the equitable and effective use of and access to the available resources.

Secondly, in the use of the available resources, due priority should be given to the realisation of ESC rights, keeping in mind the need to assure to everyone the satisfaction of subsistence requirements and the provision of essential services

(Limburg Principles nos. 27-28).

The Committee has also emphasised that severe resource constraints cannot serve as an excuse not to take any measures for the weakest groups in society. “[E]ven 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 lowcost targeted programmes.”

(General Comment no. 3, § 12).

26. Apart from the above discussed umbrella article on the obligations of states, more specific obligations can be found in the different articles. This necessitates a detailed examination of the obligations relating to each separate right in the ICESCR. It is very useful in that respect to use a typology of state obligations.

27. One such typology can be found in the ICESCR itself. It distinguishes between obligations to respect, to recognise and to ensure/guarantee. The obligation to respect is the lowest level of obligation, but the one capable of immediate implementation. The obligation to recognise is believed to trigger the application of the general state obligations mentioned in article 2. The obligation to ensure/guarantee is a stronger kind of obligation, which is moreover to be implemented immediately.

28. Another typology, which was initially developed by the Special Rapporteur Eide in the context of the right to adequate food, but which is nowadays rather wide-spread and often used for all ESC rights and even for all human rights, distinguishes obligations to respect, to protect and to fulfil (see also the Maastricht Guid elines, § 6).

The obligation to respect requires the state “to abstain from doing anything that violates the integrity of the individual or infringes on her or his freedom, including the freedom to use the material resources available to that individual in the way she or he finds best to satisfy the basic needs.” (EIDE 1989, p. 41-42). Specifically for ESC rights, states must at this primary level “respect the freedom of the individuals to take the necessary actions and use the necessary resources – alone or in association with others.” (EIDE

1989, p. 43).

The obligation to protect requires from the state “the measures necessary to prevent other individuals or groups from violating the integrity, freedom of action, or other human rights of the individual – including the infringement of his material resources.”

(EIDE 1989, p. 42). As far as ESC rights are concerned, states are required at a secondary level to protect the freedom of action and the use of resources against other subjects (EIDE, 1989, p. 44).

“The obligation to fulfil requires the state to take the measures necessary to ensure for each person within its jurisdiction opportunities to obtain satisfaction of those needs, recognized in the human rights instruments, which cannot be secured by personal efforts.” (EIDE 1989, p. 42). Specifically for the right to food, the obligation to fulfil, at the tertiary level, implies both assistance in order to provide opportunities and direct



13 provisions of food or resources which can be used for food when no other possibility exists, due to e.g. unemployment, disadvantage or age, sudden crisis or disaster, or marginalisation (EIDE 1989, p. 44).

29. In sum, it can be concluded that the obligations ensuing from the ICESCR may be sometimes vague, but that a considerable effort has been made in doctrine and by the

Committee to clarify them. This leads to the conclusion that “the application of some rights can be made justiciable immediately while other rights can become justiciable over time” (Limburg Principle no. 8).

30. The question arises whether apart from obligations for the domestic state, article 2

ICESCR includes also international obligations for State parties, as it mentions that states undertake to take steps “individually and through international assistance and cooperation, especially economic and technical”. In articles 11 (the right to an adequate standard of living and to the continuous improvement of living conditions), 22 and 23 mention is made again of international co-operation and international measures.

31. Although during the drafting process it was recognised that developing states would require some form of international assistance, no consensus was reached on the degree of responsibility for developed countries that would entail. Therefore, from the travaux préparatoires it cannot be deduced that the commitment to international cooperation would imply a legally binding obligation upon any particular state to provide any particular form of assistance (ALSTON & QUINN 1987, p. 191).

32. The Limburg Principles state in the first place that international co-operation should be focusing on the realisation of ESC rights: “[I]nternational co-operation and assistance pursuant to the Charter of the United Nations (arts. 55 and 56) and the

Covenant shall have in view as a matter of priority the realization of all human rights and fundamental freedoms, economic, social and cultural as well as civil and political.”

(Principle no. 29) “International co-operation and assistance must be directed towards the establishment of a social and international order in which the rights and freedoms set forth in the Covenant can be fully realized […].” (Principle no. 30).

33. Secondly, the Committee has stressed that “international cooperation for development and thus for the realization of economic, social and cultural rights is an obligation of all States. It is particularly incumbent upon those States which are in a position to assist others in this regard.” (General Comment no. 3, § 14).

The Netherlands Advisory Committee on Human Rights and Foreign Policy has taken an even firmer stance by stating that the UN Charter based principles combined with the articles 2, 11, 22 and 23 of the ICESCR can be interpreted to imply the existence of an obligation to provide international aid when another state is no longer capable of independently realising the absolute minimum norms of economic, social and cultural rights (Netherlands Advisory Committee on Human Rights and Foreign Policy, 1994, p.

9).

34. It should be stressed however that the industrialised countries in particular have been very reluctant up till now to accept any strong, legally binding obligation to provide aid for the realisation of ESC rights in countries of the South. It has nevertheless been suggested that inter-state complaints could be a step forward on this issue (LECKIE

1988, p. 249). We will turn to this suggestion in the fourth section.

III. AN OPTIONAL PROTOCOL TO THE ICESCR



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A. BRIEF HISTORY AND STATE-OF-THE-ART

35. From 1990 till 1996, the Committee on Economic, Social and Cultural Rights discussed the desirability and modalities of an individual complaint procedure by way of an Optional Protocol to the ICESCR.

5

In 1993, on the occasion of the Vienna World Conference on Human Rights, the

Committee submitted an analytical paper, in which a detailed study of the Optional

Protocol was included.

In 1996, consensus was reached within the Committee on the need for an individual complaint procedure, and a draft OP was finalised and submitted to the UN

Commission on Human Rights.

36. Within the UN Commission on Human Rights, which is the political body within the

UN in charge of human rights issues, the draft OP met with little enthusiasm and with a lack of political consensus. For three consecutive years, the Commission did little more than calling for comments from states, UN and intergovernmental organisations and

NGO’s; it did not take any decision on the matter.

From these consultations it appeared that NGO’s were strongly in favour of an OP

(although there seems to be much difference in opinion among them on the modalities thereof), and that a majority of states was probably not very interested in the matter, as most member states never submitted any comments. Among those few states that did, most were in favour of an optional protocol (i.e. Croatia, Cyprus, Czech Republic,

Ecuador, Finland, Georgia, Germany, Lebanon, Lithuania, Mauritius, Mexico, Norway and Portugal). Canada and Sweden expressed doubts on the desirability of an optional protocol.

37. In April 2001, some progress was made however. The Commission on Human

Rights decided unanimously to appoint an independent expert “to examine the question of a draft optional protocol to the International Covenant on Economic, Social and

Cultural Rights in the light, inter alia , of the text [submitted by the Committee on ESC rights], the comments made in that regard by States, intergovernmental organizations and non-governmental organizations, as well as the report of the workshop on the justiciability of economic, social and cultural rights, with particular reference to the draft optional protocol to the International Covenant on Economic, Social and Cultural Rights

[…].” (E/CN.4/RES/2001/30, § 8 (c)).

This decision seems to reflect on the one hand a certain readiness to go ahead with the OP, and on the other hand the awareness that an OP still meets with considerable resistance from a number of states. The appointment of an independent expert is probably to be situated somewhere in between the different options spelt out by the

High Commissioner for Human Rights, namely the call for additional comments (as a rather passive attitude, further exploring the opinions of states and NGO’s), the establishment of a working group, or the immediate discussion and adoption in the

Commission (as a more active approach, taking more or less for granted that the issue is ready for final discussion and decision). The OP to the ICESCR does not seem ready yet for final discussion, but has already passed the stage of exploratory rounds of consultation.

5 An optional protocol is legally speaking a treaty, which is legally binding for states after ratification; an OP to the ICESCR would have the same legal status as the ICESCR itself.



15

38. In sum, although some progress has been made in recent years, it takes all in all a long time to overcome the political opposition against an OP to the ICESCR, which is often based on the “legal” argument of non-justiciability.

B. THE DRAFT OPTIONAL PROTOCOL SUBMITTED BY THE COMMITTEE

39. Although the wording of the 2001 Resolution of the Commission on Human Rights

(see no. 43) suggests that the draft OP submitted by the Committee on ESC rights will not serve as the (only) basis for further discussion, that draft has nonetheless been the central focus for discussion so far. Therefore, the draft OP submitted by the Committee on ESC rights will be succinctly analysed in what follows (text in annex).

The following issues will be dealt with i.a.

: the complainants, the range of rights covered, receivability and admissibility requirements, the examination procedure, the possibility of requesting interim measures and of the recommendation of remedies, and the possibility of follow-up.

Who can complain?

40. In the draft OP, the option is taken to provide for only one kind of procedure, i.e. the individual complaint procedure. The inclusion of an inter-state complaint procedure and/or of an inquiry procedure has not been recommended. The phrase “ individual complaint procedur e” indicates that it is not an inter-State procedure; in other words, it does not necessarily exclude groups from submitting complaints.

41. Locus standi, that is the right to submit a complaint, is accorded to individuals and groups who allege to have been v ictims of a violation (“victim requirement”).

Individuals and groups can also complain on behalf of alleged victims (article 2, § 1). It is understood, although not explicitly mentioned in the text, that acting on behalf of alleged victims should take place with the knowledge and agreement of the alleged victims.

Protection of access to the procedure is guaranteed by the undertaking of states not to hinder in any way the effective exercise of the right to submit a complaint, and to take all necessary steps to prevent any sanctioning of a person or group seeking to submit or submitting a communication (article 2, § 2).

To whom?

42. The Committee is the body which complaints could be submitted to (article 1). This option is justified by referring to the considerable expertise in the field of ESC rights the

Committee has built up.

About what?

43. Complaints can be submitted for violations of any of the substantive rights protected by the ICESCR (articles 1-15).

6

Option is thus made for an inclusive or comprehensive approach, making it possible to complain about any of the substantive rights covered by the ICESCR. This comprehensive approach makes the OP more progressive than the regional complaint mechanisms for ESC rights, which may explain why the Committee did not manage to reach consensus on this issue.

7 In the Inter-American system, complaints can only be lodged concerning trade union rights and the right to education. Under the European

6 As the right to development is not mentioned in the ICESCR, it would not be covered by a complaint procedure relating to the ICESCR.

7 A strong minority within the Committee is in favour of a selective approach.



16

Social Charter, states can decide à la carte upon ratification which rights can be complained of.

The Committee has made one qualification as far as the right to self-determination in article 1 ICESCR is concerned. Communications relating to that right can only be submitted in so far as economic, social and cultural rights dimensions of that right are involved.

In the draft, consequent use is made of the “violation”-terminology. In requiring a

“violation”, the draft prevents states from being exposed to a successful complaint solely by virtue of their failure to ensure to a specific complainant the full realisation of a right.

Against whom?

44. Complaints can only be submitted against a state the jurisdiction of which the complainants are subjected to (article 1). This provision aims at guaranteeing a territorial connection between the complainant and the state.

A complaint is only possible against a state that is a party to the protocol (article 3, § 1).

Receivability and admissibility requirements

45. Communications are not receivable if anonymous or directed at a state that is not a party to the protocol (Article 3, § 1).

46. In a number of cases, communications are to be declared inadmissible: if there is no prima facie evidence of a violation; if they constitute an abuse of the right to submit a communication; if they concern acts or omissions which occurred before the entry into force of the Protocol (except when there is a continuing violation or when there are continuing effects which constitute a violation in themselves); if domestic remedies have not been exhausted; and if there exists a duplication of procedures, except when the other procedure is unreasonably prolonged.

Examination procedure

47. As far as the substantiation of a complaint is concerned, the onus to provide information is placed on the complainant (Article 4, § 1).

48. The Committee can request interim measures from the state concerned if a preliminary study gives rise to a reasonable apprehension that the alleged violations could lead to irreparable harm (Article 5). Interim measures are measures that can be requested from a state before the determination on the merits, in potentially serious cases in order to avoid irreparable harm or to preserve the status quo for example.

49. If a communication is admissible, it is brought confidentially to the attention of the state concerned. Within 6 months, the state must submit to the Committee explanations or statements, and the remedy that has possibly been afforded to the victim (article 6).

During the examination of the communication, the parties have the possibility of reaching a friendly settlement, which the Committee can contribute to by acting as a facilitator (article 6, § 3).

Apart from the information made available by the author of the communication and by the state concerned, the Committee can also take into account information from other sources for the examination of the complaint. The Committee can also visit the territory of the state concerned if that state agrees.



17

The complaint is examined in closed meetings. At the end of the examination views are adopted by the Committee, which are transmitted to the state concerned and the author of the communication, together with recommendations. The views are made public at the same time (article 7).

Remedies and follow-up

50. If the Committee concludes that a violation has occurred, it can recommend specific measures to remedy the violation and to prevent its recurrence.

The state concerned has to inform the Committee within 6 months or such longer period as may be specified by the Committee, of the measures taken pursuant to the recommendations of the Committee (article 8).

51. The Committee can follow up its recommendations by inviting a state to discuss the measures taken at a mutually convenient time. It can also invite a state to include in its

report (to be submitted every 5 years under the reporting procedure, see higher no. 5)

details of the measures taken in response to the Committee’s views and recommendations (article 9).

Entry into force

52. The OP would enter into force three months after the fifth ratification (Article 13).

Territorial scope

53. The OP would be binding upon each state party in respect of all territories subject to its jurisdiction (article 14).

IV. POSSIBLE GUIDELINES FOR ACTION

A. MOOT POINTS

54. In what follows, some of the important political moot points are examined. An attempt is made to clarify each time the issue at stake and to suggest the position

1.11.11 could take, thereby referring where possible and appropriate to positions taken on the issue by states and NGO’s.

8 As far as the suggestion is concerned with regard to the position that could be taken by 11.11.11, it is sometimes formulated in terms of a range of options, running from a minimalist (rather pragmatic) to a maximalist (rather principled) one.

It has to be realised that the more principled and progressive the position taken is, the less acceptable it often becomes politically. For that reason, a trade-off between the ideally thinkable and politically most feasible solution may sometimes have to be made, and a more pragmatic stance to be taken.

The position of 11.11.11 on an issue may also be informed by a basic option to be taken on the issue of an OP more generally. If the speedy negotiation and adoption is considered to be of the highest priority, one may have to give in on modalities. If certain

8 For the positions taken by states and NGO’s, reliance has been made primarily on the comments given by states and NGO’s following the yearly requests for comments by the

Commission for Human Rights from 1997 till 2000. Further detailed analysis of the positions taken on other occasions may be necessary, i.a.

to learn more about the positions of the majority of states that have not submitted any comments. Belgium for example has indicated its support for the Committee’s work with regard to the draft OP during the consideration of its report by the Committee.



18 modalities are considered absolutely essential, it may take more time to arrive at the stage of adopting a protocol.

Finally, attention may also be paid to the position taken by other likeminded NGO’s lobbying for an OP to the ICESCR, in order to co-ordinate and streamline positions as much as possible.

Terminology

55.

In the draft OP, a “violations” terminology is consistently used throughout the text.

56.

The issue at stake is whether to use hard (“violation”) or soft (“unsatisfactory fulfilment”) language in relation to non-observance of the ICESCR.

The argument in favour of hard language refers to the similarity with the ICCPR. As

ESC rights are no lesser rights than civil and political rights, the same terminology can and should be used for both categories of rights. Moreover, the violation terminology is believed to be more effective in terms of mobilisation of shame.

A possible drawback of the violation terminology is that it may give the impression to set a higher standard for complaints. As a consequence, potential cases of nonobservance (though not amounting to a violation) may prove impossible to complain of.

The option for a violation approach is then inspired by the notion of progressive realisation of ESC rights, which would not justify complaints about unsatisfactory fulfilment, but only about severe cases of non-observance that can be labelled violations. In this respect, the violation approach is sometimes considered as a more restrictive and more prudent approach than the unsatisfactory fulfilment approach.

57. Although soft language has occasionally been argued for by states because of the

“different character” of ESC rights, most countries and NGO’s seem to accept the violation approach taken in the draft OP. The Centre on Housing Rights and Evictions for example has explicitly argued for the use of the same language as for civil and political rights.

58. The option for a violation terminology is important because of the parallelism with the ICESCR. Although some years ago the violation approach (the so-called hard language) was expected to meet with more political resistance, some countries at least seem to consider it now as a more restrictive and prudent approach. This possible change in perspective might encourage 11.11.11 to argue for both hard cases of violations and softer cases of unsatisfactory fulfilment to be justiciable.

Kind of procedure

59. The draft OP comprises only an individual complaint procedure.

60. Apart from the individual complaint procedure, two other complaint procedures can be found in international human rights instruments: the inter-state procedure and the inquiry procedure.

The inter-state procedure allows a state to complain about the alleged non-compliance by another state. Both states have to be a party to the same instrument under which the complaint is lodged. The inter-state procedure is i.a.

provided for in the ICCPR, but is generally considered politically too strong and too sensitive to abuse, and therefore hardly used.



19

The inquiry procedure allows a supervisory body to scrutinise, either on the basis of a complaint or on its own initiative, situations that amount to a consistent pattern of gross and systematic violations of human rights.

61. During the 2001 Workshop on justiciability of ESC rights, expert participants suggested that the international dimensions of ESC rights such as international cooperation and the responsibility of other states could be appropriately addressed by interstate mechanisms (§ 34). An inter-state procedure might allow states i.a.

to complain about violations of ESC rights within or carried out by other states, as well as about the lack of international co-operation for the realisation of ESC rights.

The American Association of Jurists has suggested that the capacity of states to submit communications should not only cover complaints of violations in another state, but also the violations committed in their own territory by another state or by a transnational enterprise with its headquarters in another state.

62. In addition to an individual complaint procedure, an inter-state procedure and an inquiry procedure might be considered. The inter-state procedure may look attractive to lobby for, as it allows to address politically highly sensitive issues like international cooperation and the responsibility of third states, but much political resistance is to be expected. In allowing for the examination of patterns or practices of serious violations of ESC rights, the inquiry procedure could equally complement an individual complaint procedure in a meaningful way. Considerable political opposition is to be expected as well however.

Locus standi in the context of an individual complaint procedure

63. In the draft OP, locus standi is granted to individuals and groups who allege to be victims of a violation of the ICESCR. Individuals and groups can also complain on behalf of alleged victims.

64. A range of options is available on the issue of standing. The most liberal one is to allow individuals, groups and organisations to lodge a complaint. A much more restrictive and more usual one as far as ESC rights are concerned would be to allow only for collective complaints, and only from certain categories of groups or organisations (see the option taken under ILO-procedures and the European Social

Charter).

A second issue is whether or not to retain the victim requirement. The victim requirement implies that a complaint can only be lodged if there is a nexus between the complainant and the alleged violation. Dropping the victim requirement opens up the procedure for every possible issue of relevance on the one hand, but also for illinformed or gratuitous complaints on the other hand.

A related issue is whether representation of alleged victims by third parties should be provided for. Representation allows bringing to the attention of the Committee violations of ESC rights of individuals or groups who are unable themselves to complain thereof. A related issue is whether representation can only with the knowledge and agreement of the victims, or whether an actio popularis (this is the submission of a communication without any specific mandate from the alleged victims) should be provided for.

65. The most progressive position consists of arguing for very liberal rules of locus standi, allowing individuals, groups and organisations to complain as victims themselves or on behalf of alleged victims. In a minimalist approach, standing is only granted to a restrictive list of groups (as under the European Social Charter). A



20 possible advantage of choosing for the minimalist approach may be that the victim requirement and the requirement of exhaustion of domestic remedies are dropped, as is the case under the European Social Charter.

There is no clear-cut answer to the question whether an actio popularis is preferable.

The American Association of Jurists has argued in favour of it, submitting that an actio popularis is essential if the most vulnerable groups of the population which have very often no access to information on international procedures, are to be protected. On the other hand, the representation of groups without any mandate has inevitably paternalistic undertones. Moreover, it is clear that the actio popularis meets with fierce political resistance, even from states in favour of an OP. In sum, where there is a strong case for arguing in favour of the possibility of representation, it is much less clear whether representation should be possible without the knowledge and consent of the alleged victims.

Against whom

66. In the draft OP, only complainants who fall within the jurisdiction of a state can lodge a complaint against that state. Furthermore, it is required that that state is a party to the OP.

67. From the interpretation given to a similar provision in the OP to the ICCPR by the

Human Rights Committee it can be deduced that the clause should not be interpreted literally, excluding for example the actions of the organs of a state on foreign territory.

The requirement of jurisdiction rather refers to the relationship between the complainant and the state, particularly during the period of the alleged violation, regardless of the nationality of the individual. This implies that in special circumstances individuals can be subject to the jurisdiction of a state, even if they are outside the territory of the state.

68. The American Association of Jurists has argued for the withdrawal of the words

“subject to its jurisdiction” in article 1 of the draft OP, in order to allow the establishment of responsibility of third parties for violations of ESC rights, i.a.

in case of the imposition of structural adjustment programmes by international financial institutions, or the financial and trade policies of certain states or transnational enterprises. According to this NGO, it is a general principle of international law that individuals should be admitted to bring their complaints before an international body if their rights are violated by any state, legal entity or individual, and not only by the state with jurisdiction over the complainant.

69. It does not seem very likely that states would be prepared to drop the (territorial or personal) jurisdiction requirement, although that would allow a complainant to lodge a complaint against any state party violating its ESC rights. It can be assumed however that the Committee on ESC rights would take the same liberal stance on the issue as the Human Rights Committee has done.

It may even be far less likely that a complaint against international financial organisations or transnational enterprises is acceptable. That does not necessarily imply that other actors than the domestic state cannot be held accountable at all. In an indirect way, they can to a certain extent. In the Maastricht Guidelines on Violations of

ESC rights, it has been submitted that the obligations of a state to protect ESC rights includes first, the state’s responsibility to ensure that private entities or individuals, including transnational corporations over which they exercise jurisdiction, do not deprive individuals of their ESC rights, and secondly, extends also to their participation in international organisations, where they act collectively (§ 18 and 19).



21

Range of rights covered

70. The draft OP takes a comprehensive approach ratione materiae, allowing for complaints on all the substantive rights covered by the ICESCR.

71. There are at least four options available with regard to the scope ratione materiae:



All provisions, whether containing substantive rights or not;



All substantive rights (articles 1-15);



An a priori selection of a number of rights, with the possibility of progressive extension (this is the option taken under the San Salvador Protocol);

 An à la carte selection by the states upon ratification, indicating for which rights a complaint is possible (opt in) or excluded (opt out) (this is the option taken under the European Social Charter).

72. The option to make the complaint procedure applicable to all provisions (like the

American Association of Jurists would like to go for, making it also possible to complain about the non-fulfilment of reporting obligations) is likely to meet with serious political resistance, even from states in favour of an OP. As far as the option taken in the draft

OP is concerned, some states oppose the idea to allow for complaints on the right to self-determination. Other states have indicated that, although they are not opposed to the present draft text, an à la carte approach would be acceptable for them if that would render the OP in general acceptable to more states. 11.11.11 might nevertheless consider to argue in favour of a comprehensive approach, including all material rights.

Other issues

73. In what follows, a number of more technical issues, which are nevertheless important from an NGO and action perspective, is shortly mentioned.

74. Several NGO’s would like to see the protection of complainants to be worded in a stronger terminology. In the same vein, it has been submitted that the identity of the complainant should only be revealed to the state concerned with permission of the complainant. Although a very important issue from an action perspective in order to prevent possible reprisals from the state concerned, the suggestion is likely to meet with political resistance, even from states in favour of an OP.

75. The draft OP allows for the admissibility of complaints on violations that have taken place prior to the entry into force of the Protocol, if these violations or their effects are continuing. This provision is most probably inspired by the problems encountered by the Human Rights Committee. It would therefore be beneficial if the provision relating to continuing violations or continuing effects could be maintained.

76. As far as the admissibility requirement concerning duplication of procedures is concerned, the draft OP allows for duplication if the other proc edure is “unreasonably prolonged”. Some states generally in favour of an OP have expressed reservations on this provision.

77. The admissibility requirement of the exhaustion of domestic remedies may need further reflection in at least two respects. First, qualifications may need to be added so as to allow the Committee a certain margin of appreciation. Secondly, the question can be raised whether the requirement is suitable in cases of collective complaints.

78. The draft OP allows the Committee to get information from other sources than the parties during the examination of a complaint. Notwithstanding opposition by some states, it might be useful to retain this provision, as it allows NGO’s to contribute to shaping the views of the Committee on the issue concerned.



22

79. The draft OP provides for the possibility of interim measures , but imposes the condition that “a preliminary study gives rise to a reasonable apprehension that the allegations, if substantiated, could lead to irreparable harm.” Two suggestions have been formulated: first, to drop the condition of a preliminary study, as the request of interim measures is an urgent action procedure; secondly, to add to the justification ground of the prevention of irreparable harm a second one, aiming at preserving the status quo. Both suggestions might considerably strengthen the practical relevance of interim measures.

80. The draft OP grants the Committee the possibility to recommend specific measures to remedy the violation and to prevent it recurrence . Although no mention is made of orders for compensation or reparation, thus limiting the Committee to decisions of a more advisory and general nature, the provision in the draft OP already is progressive compared to other complaint procedures.

It might be considered to argue for the possibility for the Committee to formulate recommendations also if no violation is concluded to , as the Dutch section of the

International Commission of Jurists has suggested. The suggestion of the American

Association of Jurists to foresee the possibility for the Committee to order compensation or reparation, thus allowing for binding remedial decisions and making it a judicial procedure, is most likely to meet with fierce political opposition.

B. LIMITS AND OPPORTUNITIES

81. In what follows, some limits and opportunities of an OP to the ICESCR are outlined in order to allow for an informed assessment of the relevance and importance of an OP for people in the South and their partners in the North.

82. A number of limitations of an OP has been pointed out. Some characterise an OP per se, other are more directly concerned with the suggested OP.



First of all, an OP is strictly optional . It is only applicable to those state parties that specifically agree to be bound by it. Moreover, it is only after ratification (not yet after signature) of a treaty that it enters into force for the state concerned.



Secondly, domestic remedies are to be exhausted before a complaint can be lodged with the Committee. Even if certain nuances are excepted or if a liberal interpretation is given to this requirement by the Committee, it would rarely be possible to take a case directly to the international level (the Committee). The requirement of exhaustion of remedies may prove to be a real obstacle for taking up cases against non-democratic states, as it requires to take up a case first at the national level.



Thirdly, the Committee would only be able to take non-binding decisions (“views”).

The state party concerned would retain the final decision as to what has to be done in response to any views adopted by the Committee. Therefore, an international complaint procedure may primarily serve the cause of mobilisation of shame.



Fourthly, it is unclear yet which outcome can be expected from a complaint procedure to the ICESCR, as the content of the rights and of the obligations for states will be clarified only progressively in an authoritative way by the Committee, when dealing with complaints.



Fifthly, the outcome of a complaint procedure may sometimes prove to be only marginally beneficial to the complainants or those on behalf of whom a complaint was lodged. As Arambulo has put it: “Influencing national legislation and policy positively is the function most effectively served by an individual complaint procedure” (ARAMBULO 1999, p. 179).



Sixthly, it is rather unlikely that it will be possible to lodge a complaint against third states, let alone multinational enterprises. Therefore, it remains to be seen whether



23 a complaint procedure will provide real opportunities to tackle fully the challenges posed by economic globalisation and liberalisation.

83. An optional protocol to the ICESCR, providing for a complaint procedure, has also a number of possible advantages.



First of all, it might help forward tremendously the case of ESC rights in general.

The establishment of a quasi-judicial complaint procedure at the international level, comparable to the Human Rights Committee for the ICCPR, would add further evidence to the proclaimed equality of ESC rights and civil and political rights.



Secondly, it would entail the recognition on a practical level of the justiciability of

ESC rights.



Thirdly, it would enhance the supervision of the ICESCR and strengthen the international accountability of states for ESC rights. This might encourage states to take ESC rights seriously, and may add pressure in concrete cases.



Fourthly, an international complaint procedure for ESC rights would offer the opportunity to build up a collection of relevant case-law, in which the justiciability and the content of the rights and duties are further clarified.



Fifthly, under certain circumstances, it might provide a remedy for the complainant for the wrongs suffered.



Sixthly, it may provide at least partially an answer to the need to protect ESC rights more effectively against the politics of liberalisation. ESC rights risk suffering most from liberalisation and globalisation. It is believed that an international complaint procedure might contribute favourably for example to the clarification of the conflicting international obligations of a state (international trade obligations versus international human rights obligations). Such a procedure may also prove to be an important safeguard against liberalisation, as retrogressive measures are considered to be per se violations. A number of measures sometimes encouraged by forces of globalisation, trade rules, free market proponents may thus be hold unacceptable from an ESC rights perspective.

V. CONCLUSION

84. An OP to the ICESC rights cannot and will not be the solution to all problems.

Nevertheless, it would definitely be a step forward in the protection of ESC rights. So, while it is really worth lobbying for it, one should realistically assess the opportunities it offers.

85. The principle remaining obstacle to the adoption of an OP is political resistance.

Therefore, the challenge is not in the first place a legal one, but a political one.

86. The political bodies within the UN appear to be rather sceptical about the acceptability of an OP to the ICESCR. A number of states is opposed or rather reluctant. On the other hand, some progress has been made during this year’s session of the Commission on Human Rights (2001), as after several years of indecision, the decision was taken to appoint an independent expert.

87. Moreover, a number of NGO’s has built up expertise and experience in lobbying for an OP to the ICESCR, for example in the run-up to the Vienna World Conference on

Human Rights in 1993 and the Kopenhagen Social Summit in 1995. As the OP is high on the agenda of both human rig hts NGO’s and the like (e.g. American Association of

Jurists, International Commission of Jurists) and development NGO’s (e.g. FIAN), it goes without saying that alliances and coordination with other NGO’s is preferable.



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88. Lobbying for an OP should best go hand in hand with (1) efforts both to encourage or improve supervision mechanisms for ESC rights on national and regional levels, (2) with complementary action like the introduction of shadow reports under the reporting procedure, and (3) with drawing the attention to the need to strengthen the Committee in order to enable it to supervise the ICESCR in the best possible way.

SELECTED BIBLIOGRAPHY

ALSTON & QUINN, G., “The Nature and Scope of States Parties’ Obligations under the

International Covenant on Economic, Social and Cultural Rights”, Human Rights Quarterly

1987, 156-229.

ARAMBULO, K., Strengthening the Supervision of the International Covenant on Economic,

Social and Cultural Rights: Theoretical and Procedural Aspects , Antwerpen, Intersentia,

1999, 449 p.

BENOIT, A., COTTENIE, J., DE FEYTER, K., VERLEYEN, H., Filling the gap. Development and economic, social and cultural rights: An NGO challenge , Brussels, NCOS, March 2000.

EIDE, A., “Realization of Social and Economic Rights. The Minimum Threshold Approach”,

International Commission of Jurists The Review 1989, afl. 43, 40-52.

HENKIN, L., “International Human Rights and Rights in the United States” in J.R. PENNOCK &

J.W. CHAPMAN (eds.), Human Rights (NOMOS XXIII) Yearbook of the American Society for

Political and Legal Philosophy , New York, University Press, 1981, 257-280.

LECKIE, S., “The Inter-State Complaint Procedure in International Human Rights Law: Hopeful

Prospects or Wishful Thinking?”, Human Rights Quarterly 1988, -.

NETHERLANDS ADVISORY COMMITTEE ON HUMAN RIGHTS AND FOREIGN POLICY,

Economic, Social and Cultural Human Rights , Advisory Report no. 18, The Hague, 1994.

UN-DOCUMENTS

Question of the realization in all countries of the economic, social and cultural rights contained in the Universal Declaration of Human Rights and the International Covenant on Economic,

Social and Cultural Rights, and study of special problems which the developing countries face in their efforts to achieve these human rights, Commission on Human Rights Resolution

2001/30, E/CN.4/RES/2001/30

Report on the workshop on the justiciability of economic, social and cultural rights, with particular reference to the draft optional protocol to the International Covenant on Economic,

Social and Cultural Rights , E/CN.4/2001/62/Add. 2

The Limburg Principles on the Implementation of the International Covenant on Economic,

Social and Cultural Rights , E/C.12/2000/13

The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights,

E/C.12/2000/13

Draft optional protocol to the International Covenant on Economic, Social and Cultural Rights,

E/CN.4/1997/105

The nature of States parties obligations (Art. 2, par. 1): 14/12/90. CESCR General Comment 3



25

ANNEX. TEXT OF THE DRAFT OPTIONAL PROTOCOL AS SUGGESTED BY

THE COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (SEE

E/CN.4/1997/105).

The States Parties to the present Protocol,

[a] Emphasizing that social justice and development, including the realization of economic, social and cultural rights, are essential elements in the construction of a just and equitable national and international order,

[b] Recalling that the Vienna Declaration and Programme of Action recognized that 'all human rights are universal, indivisible and interdependent and interrelated',

[c] Emphasizing the role of the Economic and Social Council, and through it the Committee on

Economic, Social and Cultural Rights (hereinafter referred to as the Committee) in developing a better understanding of the International Covenant on Economic, Social and Cultural Rights

(hereinafter referred to as the Covenant) and in promoting the realization of the rights recognized therein,

[d] Recalling the provision of article 2 (1) of the Covenant pursuant to which 'Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures’,

[e] Noting that the possibility for the subjects of economic, social and cultural rights to submit complaints of alleged violations of those rights is a necessary means of recourse to guarantee the full enjoyment of the rights,

[f] Considering that, in order further to achieve the purposes of the Covenant and the implementation of its provisions, it is appropriate to enable the Committee to receive and examine, in accordance with the provisions of this Protocol, communications alleging violations of the Covenant,

"Have agreed as follows: ....

Article 1

A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee to receive and examine communications from any individuals or groups subject to its jurisdiction in accordance with the provisions of this Protocol.

Article 2

1. Any individual or group claiming to be a victim of a violation by the State party concerned of any of the economic, social or cultural rights recognized in the Covenant, or any individual or group acting on behalf of such claimant(s), may submit a written communication to the

Committee for examination.

2. States Parties to this Protocol undertake not to hinder in any way the effective exercise of the right to submit a communication and to take all steps necessary to prevent any persecution or sanctioning of any person or group submitting or seeking to submit a communication under this

Protocol.

Article 3

1. No communication shall be received by the Committee if it is anonymous or is directed at a

State which is not a party to this Protocol.

2. The Committee shall declare a communication inadmissible if it:



26

(a) does not contain allegations which, if substantiated, would constitute a violation of rights recognized in the Covenant;

(b) constitutes an abuse of the right to submit a communication; or

(c) relates to acts and omissions which occurred before the entry into force of this Protocol for the State Party concerned, unless those acts or omissions:

(i) continue to constitute a violation of the Covenant after the entry into force of the Protocol for that State party; or

(ii) have effects which continue beyond the entry into force of this Protocol and those effects themselves appear to constitute a violation of a right recognized in the Covenant.

3. The Committee shall not declare a communication admissible unless it has ascertained:

(a) that all available domestic remedies have been exhausted; and

(b) that a communication submitted by or on behalf of the alleged victim which raises essentially the same issues of fact and law is not being examined under another procedure of international investigation or settlement. The Committee may, however, examine such a communication where the procedure of international investigation or settlement is unreasonably prolonged.

Article 4

1. The Committee may decline to continue to examine a communication if the author, after being given a reasonable opportunity to do so, fails to provide information which would sufficiently substantiate the allegations contained in the communication.

2. The Committee may, upon the request of the author of the complaint, recommence examination of a communication which it has declared inadmissible under article 3 if the circumstances which led to its decision have changed.

Article 5

If at any time after the receipt of a communication, and before a determination on the merits has been reached, a preliminary study gives rise to a reasonable apprehension that the allegations, if substantiated, could lead to irreparable harm, the Committee may request the State Party concerned to take such interim measures as may be necessary to avoid such irreparable harm.

Article 6

1. Unless the Committee considers that a communication should be declared inadmissible without reference to the State party concerned, the Committee shall confidentially bring to the attention of the State party any communication referred to it under this Protocol.

2. Within six months, the receiving State shall submit to the Committee explanations or statements and the remedy, if any, that may have been afforded by that State.

3. During its examination of a communication, the Committee shall place itself at the disposal of the parties concerned with a view to facilitating settlement of the matter on the basis of respect for the rights and obligations set forth in the Covenant.

4. If a settlement is reached, the Committee shall prepare a report containing a statement of the facts and of the solution reached.

Article 7

1. The Committee shall examine communications received under this Protocol in the light of all information made available to it by or on behalf of the author in accordance with paragraph 2, and by the State party concerned. The Committee may also take into account information obtained from other sources, provided that this information is transmitted to the parties concerned for comment.



27

2. The Committee may adopt such procedures as will enable it to ascertain the facts and to assess the extent to which the State party concerned has fulfilled its obligations under the

Covenant.

3. As part of its examination of a communication, the Committee may, with the agreement of the

State Party concerned, visit the territory of that State Party.

4. The Committee shall hold closed meetings when examining communications under this

Protocol.

5. After examining a communication, the Committee shall adopt its views on the claims made in the communication and shall transmit these to the State party and to the author, together with any recommendations it considers appropriate. The views shall be made public at the same time.

Article 8

1. Where the Committee is of the view that a State Party has violated its obligations under the

Covenant, the Committee may recommend that the State Party take specific measures to remedy the violation and to prevent its recurrence.

2. The State Party concerned shall, within six months of receiving notice of the decision of the

Committee under paragraph 1, or such longer period as may be specified by the Committee, provide the Committee with details of the measures which it has taken in accordance with paragraph 1 above.

Article 9

1. The Committee may invite a State Party to discuss with it, at a mutually convenient time, the measures which the State Party has taken to give effect to the views or recommendations of the

Committee.

2. The Committee may invite the State Party concerned to include in its reports under article 17 of the Covenant details of any measures taken in response to the Committee's views and recommendations.

3. The Committee shall include in its annual report an account of the substance of the communication and its examination of the matter, a summary of the explanations and statements of the State Party concerned, of its own views and recommendations, and the response of the State Party concerned to those views and recommendations.

Article 10

The Committee may make rules of procedure prescribing the procedure to be followed when it is exercising the functions conferred on it by this Protocol."

Article 11

1. The Committee shall meet for such period as is necessary to carry out its functions under this

Protocol.

2. The Secretary-General of the United Nations shall provide the Committee with the necessary staff, facilities and finances for the performance of its functions under this Protocol, and in particular shall ensure that expert legal advice is available to the Committee for this purpose.

Article 12

1. This Protocol is open for signature by any State Party to the Covenant.

2. This Protocol is subject to ratification or accession by any State Party to the Covenant.

Instruments of ratification or accession shall be deposited with the Secretary-General of the

United Nations.



28

Article 13

1. This Protocol shall enter into force three months after the date of the deposit with the

Secretary-General of the United Nations of the fifth instrument of ratification or accession.

2. For each State ratifying this Protocol or acceding to it after its entry into force, this Protocol shall enter into force three months after the date of the deposit of its own instrument of ratification or accession.

Article 14

1. This Protocol will be binding upon each State Party in respect of all territories subject to its jurisdiction.

2. The provisions of this Protocol shall extend to all parts of federal States without any limitations or exceptions.

Article 15

1. Any State Party to this Protocol may propose an amendment and file it with the Secretary-

General of the United Nations.

The Secretary-General shall thereupon communicate any proposed amendments to the States

Parties to this Protocol with the request that they notify him or her whether they favour a conference of State Parties for the purpose of considering and voting upon the proposal. If within four months from the date of such communication at least one third of the States Parties favour such a conference, the Secretary-General shall convene such a conference under the auspices of the United Nations. Any amendment adopted by majority of the State parties present and voting at the conference shall be submitted to the General Assembly of the United

Nations for approval.

2. Amendments shall come into force when they have been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of the States Parties to this Protocol in accordance with their respective constitutional processes.

3. When amendments come into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of this Protocol and any earlier amendment which they have accepted.

Article 16

1. Any State Party may denounce this Protocol at any time by written notification addressed to the Secretary-General of the United Nations.

Denunciation shall take effect one year after the date of receipt of the notification by the

Secretary-General.

2. Denunciations shall be without prejudice to the continued application of the provisions of the present Protocol to any communication submitted under article

3. Following the date at which the denunciation of a State Party becomes effective, the

Committee shall not commence consideration of any new matters regarding that State.

Article 17

This Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.



Comments on the 1996 draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

Wouter Vandenhole


INTRODUCTION

1. The following comments on the 1996 draft Optional Protocol to the International

Covenant on Economic, Social and Cultural Rights (OP to the ICESCR) draw on our working paper An Optional Protocol to the International Covenant on Economic, Social and Cultural Rights written on request of 11.11.11, Coalition of the Flemish North South

Movement.

This text covers only certain aspects which are dealt with more extensively in the aforementioned paper, i.e.

what the current state of affairs is, what de key features of the draft OP are, and in which ways that draft OP could be improved in order to provide a stronger leverage for action. By making suggestions for amendment and by taking position, the present text is less neutral and more concrete than the working paper. It is mainly meant to introduce and inform the discussion on the draft “Leuven

Amendments” (see text in annex).

2. One comment before we really start. It should be stressed once more that the opposition against an individual complaint procedure is informed by basically the same arguments as the general opposition against ESC rights is. The hurdles to overcome are thus far and foremost of a political, not of a philosophical or legal nature.

What is behind that political opposition? The opposition to an individual complaint procedure seems to be really informed by the fear that uncontrollable financial burdens will be imposed on the States, and seems to be intrinsically linked with the international political conflict between North and South.

3. Let us now turn to the first issue, the current state of affairs.

I. STATE OF AFFAIRS OF THE OPTIONAL PROTOCOL TO THE ICESCR

4. The draft OP presently under discussion in the Human Rights Commission was submitted by the Committee on Economic, Social and Cultural Rights in 1996.

1

5. From 1990 till 1996, the Committee on Economic, Social and Cultural Rights had discussed the desirability and modalities of an individual complaint procedure by way of an Optional Protocol to the ICESCR during its meetings and days of general discussion, on the basis of the preparatory work of Philip Alston, who was also the chairperson of the Committee at that time (1991-1998).

2

1 See also Fons Coomans’ contribution in this volume.

2 See E/C.12/1991/WP.2; E/C.12/1992/WP.9; E/C.12/1992/SR.11; A/CONF.157/PC/62/Add.5;

E/C.12/1994/SR. 42, 45 en 56; E/C12/1995/SR. 5 en 50; E/C.12/1996/SR. 19 en 20;

E/C.12/1996/SR. 42-47.



29

30

In 1996, consensus was more or less reached within the Committee on the need for an individual complaint procedure, and a draft OP was finalised and submitted to the UN

Commission on Human Rights.

3

6. Within the UN Commission the draft OP was initially met with little enthusiasm and with a lack of political consensus. For four consecutive years, the Commission did little more than calling for comments from states, UN and intergovernmental organisations and NGO’s; it did not take any decision on the matter.

4

From these consultations it appeared that NGO’s were strongly in favour of an OP

(although there seems to be much difference in opinion among them on the modalities thereof), and that a majority of states was probably not very interested in the matter, as most member states never submitted any comments. Among those few (15) states that did, 13 were in favour of an optional protocol.

5

7. During the last (57 th ) Session of the Commission in April 2001, some progress was made however. The Commission decided unanimously to appoint an independent expert.

6 This expert, Mr. Hatem Kotare from the Faculty of legal, political and social sciences in Tunis, Tunesia, has meanwhile been appointed.

8. Let us now turn to the second issue, namely the main features of the 1996 draft

OP, and the amendments to be considered.

II. THE DRAFT OPTIONAL PROTOCOL: MOOT POINTS

9. The following text has been limited to these issues which have not been dealt with or in unsatisfactory way in the draft OP. In other words, it is focused on these issues for which an amendment of the draft OP is suggested in the “Leuven Amendments”.

The overall idea of the “Leuven Amendments” is to preserve the international consensus reached in 1999 on the OP to the Convention on the Elimination of All

Forms of Discrimination Against Women 7 (CEDAW-OP) 8 - that is the OP providing for a complaint mechanism that has most recently been adopted -, and to try and take

3 See E/CN.4/1997/105.

4 See E/CN.4/DEC/1997/104; E/CN.4/RES/1997/17; E/CN.4/RES/1998/33;

E/CN.4/RES/1999/25; E/CN.4/RES/2000/9.

5 Croatia, Cyprus, Czech Republic, Ecuador, Finland, Georgia, Germany, Lebanon, Lithuania,

Mauritius, Mexico, Norway and Portugal. Canada and Sweden expressed doubts on the desirability of an optional protocol.

The following NGO’s commented i.a.

on the text: American Association of Jurists, Centre on

Housing Rights and Evictions, Forum Mensenrechte, International Anti-Poverty Law Center,

International Commission of Jurists, Habitat International, Food First Information and Action

Network – FIAN International and NOVIB.

See E/CN.4/1998/84; E/CN.4/1998/84/Add.1; E/CN.4/1999/112; E/CN.4/1999/112/Add.1;

E/CN.4/2000/49; E/CN.4/2001/62.

6 See E/CN.4/RES/2001/30.

7 Convention on the Elimination of All Forms of Discrimination Against Women, adopted and opened for signature, ratification and accession by General Assembly resolution 34/180 of 18

December 1979, entry into force 3 September 1981.

8 Optional Protocol to the Convention on the Elimination of Discrimination against Women, adopted by General Assembly resolution A/54/4 on 6 October 1999 and opened for signature on 10 December 1999, entry into force 22 December 2000. Text in annex.



31 certain issues one step further (in accordance with Cees Flinter man’s drafting principle of “progressive development” 9 ).

A. ARTICLE 2 - Who can complain?

10. Locus standi, that is the right to submit a complaint, is accorded to individuals and groups who allege to have been victims of a violation (“victim requirement”).

Individuals and groups can also complain on behalf of alleged victims (Article 2, § 1). It is understood, although not explicitly mentioned in the text, that acting on behalf of alleged victims should take place with the knowledge and agreement of the alleged victims.

10

11. A range of options is available on the issue of standing. The most liberal one is to allow individuals, groups and organisations to lodge a complaint. A much more restrictive and more usual one as far as ESC rights are concerned would be to allow only for collective complaints, and only from certain categories of groups or organisations (see the option taken under ILO-procedures and the European Social

Charter). A possible advantage of choosing for the minimalist approach may be that the victim requirement and the requirement of exhaustion of domestic remedies are dropped, as is the case under the European Social Charter.

12. A second issue is whether representation of alleged victims by third parties should be provided for. Representation allows bringing to the attention of the Committee violations of ESC rights of individuals or groups who are unable themselves to complain thereof. A related issue is whether representation can only with the knowledge and agreement of the victims, or whether an actio popularis - this is the submission of a communication without any specific mandate from the alleged victims - should be provided for.

A good compromise has been reached in the CEDAW-OP, where in principle consent is required, unless the individual or group acting on behalf of a victim can justify their acting on behalf a victim without the consent of that victim. It has been taken over in §

2 a of the Leuven Amendments.

B. ARTICLE 2 – Terminology and rights covered

13. Complaints can be submitted for violations of any of the substantive rights protected by the ICESCR. Option is thus made for an inclusive or comprehensive approach ratione materiae , making it possible to complain about any of the substantive rights covered by the ICESCR (Articles 1-15).

This comprehensive approach makes the OP more progressive than the regional complaint mechanisms for ESC rights, which may explain why the Committee did not manage to reach consensus on this issue.

11 In the Inter-American system, complaints can only be lodged concerning trade union rights and the right to education. Under the

European Social Charter, states can decide à la carte upon ratification which rights can be complained of.

9 See C. FLINT ERMAN, “Comments on the Utrecht and Committee Draft Optional Protocols” in

F. COOMANS en F. VAN HOOF (ed.), The Right to Complain about Economic, Social and

Cultural Rights , SIM-Special no. 18, Utrecht, SIM, 1995, 205.

10 See E/CN.4/1997/105, § 23.

11 A strong minority within the Committee is in favour of a selective approach (see

E/CN.4/1997/105, § 28).



32

C .

ARTICLES 2 § 2 and 6 - Protection of claimants

14. In the second paragraph of Article 2, States undertake first, not to hinder the effective exercise of the right to submit a communication and two, to take all steps necessary to prevent persecution or sanctioning of any claimant.

15. Several NGO’s would like to see the protection of complainants to be worded in a stronger terminology. In the same vein, it has been submitted that the identity of the complainant should only be revealed to the state concerned with permission of the complainant. From an action perspective this is a very important issue, as it is crucial to prevent possible reprisals from the state concerned.

16. In CEDAW-OP, a far-reaching protection of individuals communicating with the

Committee has been provided for: art. 11 contains the obligation for states to take all appropriate steps to ensure that individuals under its jurisdiction are not subjected to illtreatment or intimidation as a consequence of communicating with the Committee. It could be considered to replace or to supplement Art. 2 of the draft OP to the ICESCR with the protection offered under art. 11 of the CEDAW-OP, the more so if an inquiry procedure was to be accepted.

Furthermore, the consent of the claimant(s) to disclosure of their identity to the state is required in art. 6 § 1 CEDAW-OP. A similar provision should be included in the OP to the ICESCR. In the Leuven Amendments it is also suggested to grant the Committee the power to blue-pencil the names of the claimants.

D. ARTICLE 3 - Receivability and admissibility requirements

17. In a number of cases, communications are to be declared inadmissible: if there is no prima facie evidence of a violation; if they constitute an abuse of the right to submit a communication; if they concern acts or omissions which occurred before the entry into force of the Protocol (except when there is a continuing violation or when there are continuing effects which constitute a violation in themselves); if domestic remedies have not been exhausted; and if there exists a duplication of procedures, except when the other procedure is unreasonably prolonged.

18. The admissibility requirement of the exhaustion of domestic remedies may need further reflection in at least two respects. First, qualifications may need to be added so as to allow the Committee a certain margin of appreciati on. In Article 4 § 1 CEDAW-

OP, a communication is to be declared admissible even if all available domestic remedies have not been exhausted, if the application of such remedies was unreasonably prolonged or unlikely to bring effective relief. These two qualifications have been suggested in the draft Leuven Declaration (§ 2 b)

E. ARTICLE 5 – Interim Measures

19. The Committee can request interim measures from the state concerned if a preliminary study gives rise to a reasonable apprehension that the alleged violations could lead to irreparable harm (Article 5).

Interim measures are measures that can be requested from a state before the determination on the merits, in potentially serious cases in order to avoid irreparable harm or to preserve the status quo for example.

20. Two suggestions have been formulated in the Leuven Amendments: first, to drop the explicit condition of a preliminary study. The condition of a real study is too severe, too strong for interim measures, as interim measures are an urgent action procedure.

This is not to say that no inquiry whatsoever is required before interim measures are taken by the Committee (see § 2 c Leuven).



33

Secondly, the suggestion to add to the justification ground of the prevention of irreparable harm as a second one, aiming at preserving the status quo, has been integrated in § 3 c Leuven Amendments.

Both suggestions might considerably strengthen the practical relevance of interim measures.

F .

ARTICLE 6 and 7

– Examination Procedure

21. If a communication is admissible, it is brought confidentially to the attention of the state concerned. Within 6 months, the state must submit to the Committee explanations or statements, and the remedy that has possibly been afforded to the victim (Article 6).

During the examination of the communication, the parties have the possibility of reaching a friendly settlement, which the Committee can contribute to by acting as a facilitator (Article 6, § 3).

Apart from the information made available by the author of the communication and by the state concerned, the Committee can also take into account information from other sources for the examination of the complaint, provided that the information is also transmitted to the parties concerned for comment. The Committee can also visit the territory of the state concerned if that state agrees.

The complaint is examined in closed meetings. At the end of the examination views are adopted by the Committee, which are transmitted to the state concerned and the author of the communication, together with recommendations. The views are made public at the same time (Article 7).

22. The draft OP allows the Committee to get information from other sources than the parties during the examination of a complaint. Notwithstanding opposition by some states, it might be useful to retain this provision, as it allows NGO’s to contribute to shaping the views of the Committee on the issue concerned.

G. ARTICLES 8 and 9 - Remedies and follow-up

23. If the Committee concludes that a violation has occurred, it can recommend specific measures to remedy the violation and to prevent its recurrence.

The state concerned has to inform the Committee within 6 months or such longer period as may be specified by the Committee, of the measures taken pursuant to the recommendations of the Committee (Article 8).

24. The Committee can follow up its recommendations by inviting a state to discuss the measures taken at a mutually convenient time. It can also invite a state to include in its report (to be submitted every 5 years under the reporting procedure) details of the measures taken in response to the Committee’s views and recommendations (Article

9).

25. The draft OP grants the Committee the possibility to recommend specific measures to remedy the violation and to prevent it recurrence . No mention is made of orders for compensation or reparation, thus limiting the Committee to decisions of a more advisory and general nature. Therefore, in the Leuven Amendments a provision has been included in order to specify the character of the remedies the Committee can recommend, namely that they can be both of an individual or a more general nature

(see § 3 d Leuven Amendments).



34

26. The § 2 e of the draft Leuven Amendments also provides for the possibility for the

Committee to formulate recommendations if no violation is concluded to , as the Dutch section of the International Commission of Jurists has suggested.

12

H. NEW ARTICLE – Inter-State Procedure

27. In the draft OP, only one kind of procedure is available, i.e. the individual complaint procedure. An inter-state complaint procedure and/or of an inquiry procedure have not been included.

28. Both complaint procedures, the inter-state procedure and the inquiry procedure, can be found in international human rights instruments.

The inter-state procedure is i.a.

provided for in the ICCPR. It allows a state to complain about the alleged non-compliance by another state. Both states have to be a party to the same instrument under which the complaint is lodged.

29. During the 2001 Workshop on justiciability of ESC rights, expert participants suggested that the international dimensions of ESC rights such as international cooperation and the responsibility of other states could be appropriately addressed by interstate mechanisms (§ 34).

13 An inter-state procedure might allow states i.a.

to complain about violations of ESC rights within or carried out by other states, as well as about the lack of international co-operation for the realisation of ESC rights.

30. In line with this suggestion, the recommendation to include an inter-state complaint procedure, giving the Committee the competence to receive and consider communications from a State Party claiming that another State Party is not fulfilling its obligations under the Covenant, has been integrated in § 3 a Leuven Amendments.

I. NEW ARTICLE – Inquiry Procedure

31. An inquiry procedure has not been included either in the OP to the ICESCR. The inquiry procedure allows a supervisory body to scrutinise, either on the basis of a complaint or on its own initiative, situations that amount to a consistent pattern of gross and systematic violations of human rights.

32. In allowing for the examination of patterns or practices of serious violations of ESC rights, the inquiry procedure could equally complement in a meaningful way an individual complaint procedure.

33. The CEDAW-OP already contains an inquiry procedure in its Articles 8 and 9. It is suggested in § 2 f Leuven Amendments to provide for such a procedure in the OP to the ICESCR as well.

34. Article 10 however allows states to opt out by declaring at the time of signature or ratification that it does not recognize the competence of the Committee to conduct an inquiry. Dropping the possibility of opting out of an inquiry procedure would take the present OP to the ICESCR one step further than the CEDAW-OP.

12 See E/CN.4/1998/84; § 23 (c) (iii).

13 See E/CN.4/2001/62/Add.2, Report on the workshop on the justiciability of economic, social and cultural rights, with particular reference to the draft optional protocol to the International

Covenant on Economic, Social and Cultural Rights .



35

Annex 1. Draft Leuven Amendments to an Optional Protocol to the International

Covenant on Economic, Social and Cultural Rights

On 30 November 2001 an expert seminar on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights was held in Leuven, Belgium. It was organised by the

Institute for Human Rights of the Faculty of Law, Catholic University of Leuven on the initiative of 11.11.11, Coalition of the Flemish North South Movement. On that occasion, the following conclusions were adopted: a. The participants to the seminar fully endorse the draft Optional Protocol as proposed, already in 1996, by the Committee on Economic, Social and Cultural Rights. b. Applying the “standstill” principle to the international consensus reached in the meantime on the occasion of the adoption in 1999 of the Optional Protocol to the Convention on the

Elimination of Discrimination against Women 14 , the participants would like to suggest the following amendments: a) if locus standi is accorded to individuals or groups acting on behalf of claimant(s), consent of the claimant(s) should be required, unless these individuals or groups could justify acting on their behalf without such consent 15 ( ad Article 2 § 1). b) a communication should be declared admissible even if all available domestic remedies have not been exhausted, if the application of such remedies was unreasonably prolonged or unlikely to bring effective relief 16 ( ad Article 3 § 3 (a)). c) the Committee should have the possibility to request interim measures from a state without the explicit requirement of “a preliminary study [giving] rise to a reasonable apprehension

[…]“ 17 ( ad Article 5). d) consent of claimants should be sought upon disclosure of their identity to the State Party concerned in a communication 18 ; where no such consent is obtained, the Committee should have the possibility to blue-pencil the name(s) of the claimant(s). ( ad Article 6 § 1). e) the Committee should have the power to make recommendations to States Parties regardless of the fact whether a violation has been found or not 19 ( ad Article 8 § 1). f) an inquiry procedure should be provided for in case reliable information is received on grave or systematic violations of rights set forth in the Covenant 20 (new article). g) reservations to the Protocol should be prohibited 21 (new article). c. Furthermore, the participants also favour: a. the inclusion of an inter-state complaint procedure, giving the Committee the competence to receive and consider communications from a State Party claiming that another State

Party is not fulfilling its obligations under the Covenant 22 (new article). b. the adoption of an inclusive or comprehensive approach as far as the range of rights covered is concerned, as proposed by the majority of the Committee in its draft Optional

Protocol ( ad Article 2 § 1). c. the possibility for the Committee to request interim measures from a State Party not only in order to avoid irreparable harm, but also in order to preserve the status quo ( ad Article 5). d. a specification of the character of the remedies the Committee can recommend to the State

Party, in the sense that they can be both of an individual or of a general nature ( ad Article 8

§ 1).

14 Adopted by General Assembly resolution A/54/4 on 6 October 1999 and opened for signature on 10 December 1999; entered into force on 22 December 2000.

15

See Art. 2 Optional Protocol to the Convention on the Elimination of Discrimination against Women.

16 See Art. 4 § 1 Optional Protocol to the Convention on the Elimination of Discrimination against Women.




20


21


22

See Art. 41 International Covenant on Civil and Political Rights.



36

Annex 2. Optional Protocol to the Convention on the Elimination of Discrimination against Women, adopted by General Assembly resolution A/54/4 on 6 October

1999 and opened for signature on 10 December 1999, entry into force 22

December 2000.

The States Parties to the present Protocol,

Noting that the Charter of the United Nations reaffirms faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women,

Also noting that the Universal Declaration of Human Rights Resolution 217 A (III). proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, including distinction based on sex,

Recalling that the International Covenants on Human Rights Resolution 2200 A (XXI), annex. and other international human rights instruments prohibit discrimination on the basis of sex,

Also recalling the Convention on the Elimination of All Forms of Discrimination against

Women4 (“the Convention”), in which the States Parties thereto condemn discrimination against women in all its forms and agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women,

Reaffirming their determination to ensure the full and equal enjoyment by women of all human rights and fundamental freedoms and to take effective action to prevent violations of these rights and freedoms,

Have agreed as follows:

Article 1

A State Party to the present Protocol (“State Party”) recognizes the competence of the

Committee on the E limination of Discrimination against Women (“the Committee”) to receive and consider communications submitted in accordance with article 2.

Article 2

Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the rights set forth in the Convention by that State Party. Where a communication is submitted on behalf of individuals or groups of individuals, this shall be with their consent unless the author can justify acting on their behalf without such consent.

Article 3

Communications shall be in writing and shall not be anonymous. No communication shall be received by the Committee if it concerns a State Party to the Convention that is not a party to the present Protocol.

Article 4

1. The Committee shall not consider a communication unless it has ascertained that all available domestic remedies have been exhausted unless the application of such remedies is unreasonably prolonged or unlikely to bring effective relief.

2. The Committee shall declare a communication inadmissible where:



37

(a) The same matter has already been examined by the Committee or has been or is being examined under another procedure of international investigation or settlement;

(b) It is incompatible with the provisions of the Convention;

(c) It is manifestly ill-founded or not sufficiently substantiated;

(d) It is an abuse of the right to submit a communication;

(e) The facts that are the subject of the communication occurred prior to the entry into force of the present Protocol for the State Party concerned unless those facts continued after that date.

Article 5

1. 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 to avoid possible irreparable damage to the victim or victims of the alleged violation.

2. Where the Committee exercises its discretion under paragraph 1 of the present article, this does not imply a determination on admissibility or on the merits of the communication.

Article 6

1. Unless the Committee considers a communication inadmissible without reference to the

State Party concerned, and provided that the individual or individuals consent to the disclosure of their identity to that State Party, the Committee shall bring any communication submitted to it under the present Protocol confidentially to the attention of the State Party concerned.

2. Within six months, the receiving State Party shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been provided by that State Party.

Article 7

1. The Committee shall consider communications received under the present Protocol in the light of all information made available to it by or on behalf of individuals or groups of individuals and by the State Party concerned, provided that this information is transmitted to the parties concerned.

2. The Committee shall hold closed meetings when examining communications under the present Protocol.

3. After examining a communication, the Committee shall transmit its views on the communication, together with its recommendations, if any, to the parties concerned.

4. The State Party shall give due consideration to the views of the Committee, together with its recommendations, if any, and shall submit to the Committee, within six months, a written response, including information on any action taken in the light of the views and recommendations of the Committee.

5. The Committee may invite the State Party to submit further information about any measures the State Party has taken in response to its views or recommendations, if any, including as deemed appropriate by the Committee, in the State Party’s subsequent reports under article 18 of the Convention.



38

Article 8

1. If the Committee receives reliable information indicating grave or systematic violations by a

State Party of rights set forth in the Convention, the Committee shall invite that State Party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned.

2. Taking into account any observations that may have been submitted by the State Party concerned as well as any other reliable information available to it, the Committee may designate one or more of its members to conduct an inquiry and to report urgently to the

Committee. Where warranted and with the consent of the State Party, the inquiry may include a visit to its territory.

3. After examining the findings of such an inquiry, the Committee shall transmit these findings to the State Party concerned together with any comments and recommendations.

4. The State Party concerned shall, within six months of receiving the findings, comments and recommendations transmitted by the Committee, submit its observations to the Committee.

5. Such an inquiry shall be conducted confidentially and the cooperation of the State Party shall be sought at all stages of the proceedings.

Article 9

1. The Committee may invite the State Party concerned to include in its report under article 18 of the Convention details of any measures taken in response to an inquiry conducted under article 8 of the present Protocol.

2. The Committee may, if necessary, after the end of the period of six months referred to in article 8.4, invite the State Party concerned to inform it of the measures taken in response to such an inquiry.

Article 10

1. Each State Party may, at the time of signature or ratification of the present Protocol or accession thereto, declare that it does not recognize the competence of the Committee provided for in articles 8 and 9.

2. Any State Party having made a declaration in accordance with paragraph 1 of the present article may, at any time, withdraw this declaration by notification to the Secretary-General.

Article 11

A State Party shall take all appropriate steps to ensure that individuals under its jurisdiction are not subjected to ill treatment or intimidation as a consequence of communicating with the

Committee pursuant to the present Protocol.

Article 12

The Committee shall include in its annual report under article 21 of the Convention a summary of its activities under the present Protocol.

Article 13

Each State Party undertakes to make widely known and to give publicity to the Convention and the present Protocol and to facilitate access to information about the views and recommendations of the Committee, in particular, on matters involving that State Party.



39

Article 14

The Committee shall develop its own rules of procedure to be followed when exercising the functions conferred on it by the present Protocol.

Article 15

1. The present Protocol shall be open for signature by any State that has signed, ratified or acceded to the Convention.

2. The present Protocol shall be subject to ratification by any State that has ratified or acceded to the Convention. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

3. The present Protocol shall be open to accession by any State that has ratified or acceded to the Convention.

4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-

General of the United Nations.

Article 16

1. The present Protocol shall enter into force three months after the date of the deposit with the

Secretary-General of the United Nations of the tenth instrument of ratification or accession.

2. For each State ratifying the present Protocol or acceding to it after its entry into force, the present Protocol shall enter into force three months after the date of the deposit of its own instrument of ratification or accession.

Article 17

No reservations to the present Protocol shall be permitted.

Article 18

1. Any State Party may propose an amendment to the present Protocol and file it with the

Secretary-General of the United Nations. The Secretary-General shall thereupon communicate any proposed amendments to the States Parties with a request that they notify her or him whether they favour a conference of States Parties for the purpose of considering and voting on the proposal. In the event that at least one third of the States Parties favour such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations.

Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted to the General Assembly of the United Nations for approval.

2. Amendments shall come into force when they have been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of the States Parties to the present

Protocol in accordance with their respective constitutional processes.

3. When amendments come into force, they shall be binding on those States Parties that have accepted them, other States Parties still being bound by the provisions of the present Protocol and any earlier amendments that they have accepted.

Article 19

1. Any State Party may denounce the present Protocol at any time by written notification addressed to the Secretary-General of the United Nations. Denunciation shall take effect six months after the date of receipt of the notification by the Secretary-General.



40

2. Denunciation shall be without prejudice to the continued application of the provisions of the present Protocol to any communication submitted under article 2 or any inquiry initiated under article 8 before the effective date of denunciation.

Article 20

The Secretary-General of the United Nations shall inform all States of:

(a) Signatures, ratifications and accessions under the present Protocol;

(b) The date of entry into force of the present Protocol and of any amendment under article 18;

(c) Any denunciation under article 19.

Article 21

1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.

2. The Secretary-General of the United Nations shall transmit certified copies of the present

Protocol to all States referred to in article 25 of the Convention.



41

The Role of the UN Committee on Economic, Social and Cultural Rights in Strengthening Implementation and Supervision of the International Covenant on

Economic, Social and Cultural Rights

Fons Coomans

Centre for Human Rights

Maastricht University, The Netherlands

I. INTRODUCTION

In 2002, it will be fifteen years since the UN Committee on Economic, Social and

Cultural Rights (hereafter the CESCR or the Committee) started its supervisory role in the field of economic, social and cultural rights. Central to the work of the Committee is the key obligation of Article 2(1) of the International Covenant on Economic, Social and

Cultural Rights (hereafter the Covenant): the obligation for State Parties to take steps aimed at the progressive realisation, to the maximum of its available resources, of the rights listed in the Covenant.

1 Supervision of the realisation of economic, social and cultural rights is both a complex and challenging issue. There are a number of reasons for this. First, there is a lack of a common and agreed understanding of the meaning of these rights and of obligations of states. Secondly, it is being recognised that there is a big variety and diversity of means and measures to make these rights operational.

Thirdly, there is a complex relationship between the rights listed in the treaty and the availability and allocation of resources, taking into account the ability and/or inability of states and the presence or lack of political will to implement the rights. Finally, there is the fact that other actors than the state play a role in the process of realisation of economic, social and cultural rights. These other actors include international financial institutions (IMF, World Bank), multinational corporations and other states. The question is whether these other actors are also bound by the provisions of the

Covenant. Consequently, from this perspective, the text of the Covenant does not reflect present-day developments towards globalisation and privatisation. When the

Covenant was drafted in the 1950’s and 1960’s, the state was still the principal actor to rely upon for the realisation of economic, social and cultural rights, and there was optimism about world-wide economic growth and rising levels of welfare also for the developing countries. The Covenant reflects this spirit. All the factors just listed complicate implementation and supervision of the Covenant. In this paper, I will discuss some basic characteristics of the Committee and make some observations on the state reporting procedure as developed by the Committee over the years. I will also deal with the work of the Committee relating to the clarification of treaty standards. Finally, I will discuss a number of arguments in favour of a complaints procedure in the form of an

Optional Protocol to the Covenant as a future instrument to strengthen international supervision.

II. THE EXAMINATION OF STATE REPORTS BY THE CESCR

The Commitee

The United Nations Committee on Economic, Social and Cultural Rights was established in 1985 by a decision of the Economic and Social Council (ECOSOC) of

1 Adopted in 1966; entered into force in 1976. Presently there are 144 States Parties.



42 the UN.

2 Therefore, the Committee is not a body established by treaty, as the Human

Rights Committee is 3 , but it is a subsidiary body of ECOSOC. The CESCR held its first session in 1987. Due to the fact that the Committee is a subsidiary body of ECOSOC, it has not been hampered by the constraints of a treaty text which would have limited its possibilities to deal with state reports and grant access to non-governmental organisations. As a result, it has been able to develop its working methods quickly and flexibly.

4 The Committee is composed of 18 experts in the field of economic, social and cultural rights who serve in their personal capacity and have an independent status which means that they are under no instruction of the governments which nominated them. Members are elected by ECOSOC from the States Parties. There is a geographical diversity of Committee members, coming from all parts of the world. The

Committee meets twice a year in Geneva for a three week session. Its mandate is to examine state reports which governments are under an obligation to submit periodically to ECOSOC.

5

The dialogue between the Committee and the State Party

When considering a state report, the Committee is entering in a dialogue with representatives of a government. On the basis of the state report, which has already been submitted earlier, the Committee poses questions to the governmental representatives about the level of implementation of the treaty standards in the country concerned, the progress made and the factors and difficulties encountered.

Government officials which are present at the session are supposed to answer these questions in a way which gives insight about the implementation of economic, social and cultural rights in that country. This dialogue has been characterized as

“constructive” 6 , because of its supposed mutually beneficial nature: on the one hand it helps the Committee to understand better the nature of problems which negatively influence the implementation of treaty standards in a large group of states, on the other hand, the comments made by the Committee may help governments to implement better the treaty standards. The discussions between a treaty supervisory body and a government have also been characterized as a “direct dialogue”.

7 This qualification reflects more the fact that the consideration of a state report is part of a process of a government’s international accountability for the realization of human rights before an international supervisory body which presents a judgment about the performance of the government concerned. In the past, members of the Committee have stressed that the

Committee is not a court and does not condemn states for not complying with their treaty obligations. However, the practice of the Committee over the last ten years has changed to a certain extent. The Committee has developed its mandate in ways that point more towards the taking up of a quasi-judicial role. It has stressed its authority as the central supervisory body to interpret the Covenant provisions. In addition, it has begun to receive information from non-governmental organisations prior to the consideration of state reports. Finally, it has adopted the practice of making “concluding observations” based on the consideration of a specific state report. These concluding observations contain a part on positive aspects with respect to the implementation of

2 ECOSOC Decision 1985/17.

3 The body which supervises the observance of the International Covenant on Civil and

Political R ights by States’ Parties. See Article 28 ICCPR.

4 For an overview of the present working methods of the Committee see the latest annual report.

5 See Articles 16 and 17 of the Covenant.

6 Ph. Alston, The International Covenant on Economic, Social and Cultural Rights, in:

Manual on Human Rights Reporting, Geneva: United Nations, 2nd ed., 1997, pp. 65-

170, at p. 160.

7 This qualification has been used by Fausto Pocar, former Chairperson of the Human

Rights Committee.



economic, social and cultural rights in the state concerned, a part on issues of concern, and a final part on suggestions and recommendations which aim at a better implementation on treaty standards. In a number of cases, the CESCR has made comments, as part of the concluding observations, as to whether or not the state concerned had acted in accordance with its treaty obligations. By doing so, the

Commit tee has actually characterized specific situations as “violations” of state obligations, although avoiding this term in the concluding observations.

8

Non-reporting states and overdue reports

The obligation to report is a legal obligation which rests upon states. There is a number of states, however, which have’nt so far submitted a single state report since becoming a Party to the Covenant. Other states are significantly overdue in submitting their report. This is a very unsatisfactory situation which has been unacceptable for the

Committee, because it bears the risk of undermining the whole idea of international accountability for human rights implementation. Therefore, the Committee began the practice of discussing the situation of economic, social and cultural rights in such countries without having a report at its disposal. It will then base its examination and observations on alternative sources of information drawn from ngo’s, the press and from other UN (specialised) agencies.

9

Follow-up procedure

The Committee has also adopted a procedure to follow up the way in which governments give effect to the concluding observations.

10 States should provide additional, detailed information about specific issues identified in the concluding observations, in particular if there is a pressing reason to do so, for example, in case of future forced evictions, or a dangerous health situation due to pollution by industrial plants. In this manner the Committee keeps a finger to the pulse and the country under a kind of permanent supervision. In exceptional cases, the Committee may even ask the government concerned to accept a mission composed of Committee members to study a situation on site.

11 The success of the follow-up procedure depends, of course, on the willingness of the government concerned to co-operate with the Committee, which means, the willingness to provide additional information before a specific deadline set by the Committee, or to receive a mission of Committee members.

12

III. NGO PARTICIPATION IN THE WORK OF THE COMMITTEE

There are several ways in which ngo’s may participate in the work of the Committee.

Usually, their role is linked to the state reporting process. They may be involved during three stages: before, during and after the examination of a state report by the

Committee.

8 See, for example, UN Doc. E/C.12/1994/15 on the Dominican Republic and UN Doc.

E/C.12/1/Add.23 on Nigeria.

9 See CESCR, Report on the twenty-second, twenty-third and twenty-fourth sessions

(2000), UN. Doc. E/2001/22, paras. 47-49.

10 See UN Doc. E/2001/22, paras. 43-46.

11 Missions of the Committee have been conducted to the Dominican Republic,

Panama and The Phillippines.

12 See on this follow-up procedure, Fons Coomans, Follow-Up Action to State

Reporting on Human Rights: Procedure and Practice of the Committee on the Rights of the Child and the Committee on Economic, Social and Cultural Rights, in: F. Coomans et al . (eds.), Rendering Justice to the Vulnerable, The Hague: Kluwer Law

International, 2000, pp. 83-98.



43

44

Preparatory stage

Once the report of a state has been submitted to ECOSOC, there are ample opportunities for ngo’s to submit alternative information to the Committee. Ngo’s may produce socalled ‘parallel’ or ‘shadow’ reports to the official governmental report as a means to complement, correct, comment and criticize the official position and information provided by the state. There is a growing practice in a number of states, especially developing countries, to establish a coalition of ngo’s that work together to compile relevant information and draft a joint shadow report which covers a number of thematic issues about the implementation of the rights listed in the Covenant.

13 A state report on the implementation of the Covenant deals with issues which may be approached from a human rights perspective, but also from a development perspective. Therefore, there is good reason to bring together human rights ngo’s and development ngo’s and try to integrate information in a shadow report from ‘a human rights approach to development’ perspective.

14 Shadow reports may cover the whole range of Covenant rights or just one or two articles/issues depending on the expertise and experience of the ngo’s involved and the amount of reliable, alternative information available. It may be useful for national ngo’s to ask for the support from the international offices of International Non-governmental Organisations to help scrutinise governmental policies and write the report.

15

This ngo information may be presented orally to the Committee during a meeting of the pre-sessional working group of the Committee which meets six months before the consideration of the state report by the plenary Committee. The purpose of this presessional meeting is to prepare the consideration of the state report and for that purpose there is a country rapporteur who is in charge of drafting a list of questions or issues to be sent to the government which should be addressed by the governmetal representatives during the examination of the state report. Written ngo information may also be sent to the secreatriat of the Committee or to the country rapporteur before the meeting of the pre-sessional working or at a later stage, prior to the consideration of the state report. T he alternative information submitted by ngo’s in their shadow reports and explained orally may be very useful for the Committee to complement the governmental information which usually gives a rather rosy and often selective picture of the situation of economic, social and cultural rights.

Committee stage

It is also possible for ngo’s to present oral information to the Committee on the first day of each session. This oral statement may deal with questions such as the opinion of the ngo about the government report, indicate whether or not there has been any domestic government/ngo consultation or cooperation through the reporting process, discuss the main critical points of the parallel report or propose solutions to the problems

13 Information on the situation of economic, social and cultural rights in Mexico, pre pared by a coalition of ngo’s, see UN Doc. E/C.12/1999/NGO/3.

14 See Marjolein Brouwer, Making ESCR meaningful to people, paper presented at the

SIM Conference Following Up the Good Work, Utrecht, 28-29 September 2001. In her paper, Brouwer discusses interesting examples of ngo cooperation and rights based approaches to development issues from Mexico and Colombia.

15

See for examples concerning children’s rights C. Price Cohen, The United Nations

Convention on the Rights of the Child: Involvement of NGO’s, in: Th. Van Boven et al . (eds.),

The Legitimacy of the United Nations: Towards an Enhanced Legal Status of Non-State Actors,

Utrecht: Netherlands Institute of Human Rights, SIM Special no. 19, pp. 169-184, at p. 182. See also the 1999 Parallel Report on Violations of of the Human Right to Education in Cameroon, prepared with the help of World University Service-International (on file with the author).



45 encountered in the implementation of the Covenant.

16 Sessions of the Committee where government reports are being discussed are public, so ngo’s may observe the dialogue between the Committee members and the government representatives, but they are not allowed to intervene.

Follow-up stage

The final stage of ngo participation concerns the period after the examination of the state report and the adoption of concluding observations by the Committee. This stage is crucial, because it deals with the followup given to the Committee’s suggestions and recommendations by the government. This stage is important for a ngo, because it may act as a kind of watchdog to monitor the government’s performance in implementing the Committee’s recommendations. Ngo’s may ask the government to publish the concluding observations of the Committee in order to inform the public at large and raise awareness, and/or disseminate the concluding observations themselves. They may translate the concluding observations into local languages and into more concrete term s and policy goals which can be monitored by the ngo’s. Another strategy for ngo’s is to organise a follow-up meeting with representatives of the government, members of parliament and ngo’s to discuss the implications of the concluding observations. It may even be useful to invite the Committee’s Country Rappoteur to attend this follow-up meeting at the national level and to explain the meaning of the concluding observations. Ngo’s may lobby with members of parliament for a discussion of the concluding obse rvations in parliament. Ngo’s may also report back to the Committee on a regular basis about the accomplishments of a government in the field of implementation.

17 This information may accordingly be useful in the process of the preparation of the consideration of the next periodic state report.

Rounding up, it may be said that the Committee has created several ways to involve civil society in the reporting process in order to prevent the process from becoming too much diplomatic and government-oriented without a link to the situation and experiences of ordinary people and allday reality. Therefore, access for ngo’s to the

Committee is relatively easy and the threshold is rather low. Whether ngo’s use this procedure depends on their knowledge about the Covenant reporting procedure, the level of awareness of the Covenant rights with ngo’s at the domestic level and their ability to collect and present alternative information working from a “rights-based approach”.

IV. CLARIFICATION OF TREATY STANDARDS

General Comments

Since its establishment in 1987, the Committee has tried to shed more light on the meaning of the standards listed in the Covenant in terms of rights for individuals and obligations for states. This is important, because clarification is essential for assessing state performance in the field of economic, social and cultural rights. For that purpose, the Committee has begun to draft and adopt socalled ‘General Comments’. These are authoritative interpretations by the Committee of Covenant provisions based on the experience gained from the examination of state reports, Days of General Discussion

16 Detailed guidelines for the involvement of ngo’s in the work of the Committee have been published in the report of the Committee on its 2000 sessions, reproduced in U.N.

Doc. E/2001/22, Annex V. See para. 23 of this Annex. For a detailed checklist for ngo participation in the work of the CESCR, see A. McChesney, Promoting and Defending

Economic, Social & Cultural Rights – A Handbook, Washington: American Association for the Advancement of Science, 2000, pp. 167-177.

17 U.N. Doc. E/2001/22, Annex V, para. 27.



46 on thematic issues and developments on economic, social and cultural rights in the framework of the United Nations. So far, the Committee has adopted 14 General

Comments. The majority of them deal with the normative content of rights, the specification of state obligations and present examples of violations of rights. It is interesting to note that General Comments often reflect developments in academic deb ates about human rights, as well as involvement and contributions of ngo’s in the field of specific rights, such as the right to adequate housing and the right to food. For example, the general comment on the right to adequate housing and the one on forced evictions 18 were inspired by contributions from ngo’s such as the Centre for Housing

Rights and Evictions (COHRE), while the comment on the right to food reflects much input from FoodFirst International Action Network (FIAN).

19 These Comments are also important, because the may serve as a semi-legal sources to deal with individual complaints by the Committee, once this procedure has been adopted.

By way of illustration, I will deal hereafter briefly with two crucial General Comments, one on the nature of St ate’s Parties obligations under the Covenant (Article 2(1)) and the other one on the right to adequate food (Article 11(1)).

General Comment no. 3 on the nature of States Parties obligations

This comment gives an interpretation of Article 2(1) of the Cove nant, the treaty’s key provision. Article 2(1) reads as follows:

‘Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources , with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means , including particularly the adoption of legislative measures.’ 20

General Comment no. 3, on the nature of States Parties obligations, was adopted in

1990.

21 The drafting of this comment was inspired by the socalled “Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural

Rights”, adopted during an expert seminar held in Maastricht (The Netherlands) in

1986.

22 These Principles already give an authoritative interpretation of the key issues of

Article 2(1), suggested by experts in the field of international law and human rights law.

In General Comment no. 3, the Committee explains that, although the full realisation of the treaty rights may be achieved progressively, states have a legal obligation to take steps towards realisation within a reasonably short time after the Covenant’s entry into force for the states concerned. In addition, Article 2(1) imposes an obligation on states to move as expeditiously and effectively as possible towards full realisation of the rights. From the perspective of progressive realisation, deliberately retrogressive measures are problematic and, in the opinion of the Committee, would require a very careful consideration and a complete justification in light of the total package of rights provided for and the requirement to use the maximum available resources.

23 In the view of the Committee, states have certain minimum core obligations to ensure, at the very least, minimum essential levels of each of the rights. If that would not be the case,

18 General Comments no. 4 (1991) on the right to adequate housing and no. 7 (1997) on forced evictions.

19 General Comment no. 12 (1999) on the right to adequate food.

20 I have emphasised the key clauses of this provision.

21 General comments of the Committee can be found at the UN Treaty Bodies Database, www.unhchr.ch/tbs/

22 The Limburg Principles have been published in UN Doc. E/CN.4/1987/17, Annex and in the

Human Rights Quarterly, Vol. 9 (1987), p. 122-135.

23 General Comment no. 3, para. 9.



the Covenant would lose its meaning as an instrument for the protection of human rights. The Committee is rather strict in this respect: if in a state a significant number of people is deprived of essential foodstuffs, essential primary health care, or of basic shelter or the most basic forms of education, such a state is failing to discharge is obligations under the Covenant. This is diplomatic or veiled language to indicate that a violation of rights has occurred. In case a state has to cope with inadequate resources, the obligation remains for the state to ensure, as a matter of priority, those minimum core obligations. In times of economic recession or during a process of financial adjustment, the government must do everything it can to protect the most vulnerable members of society from the negative consequences of this situation on the enjoyment of their social and economic rights.

24 This General Comment is important, because it gives guidance to states about the nature, scope and object of their obligations under the Covenant. It should be used by governments as a kind of touch-stone for legislation an policy in the field of economic, social and cultural rights.

Progressive realisation and violations

Still, measuring and monitoring the progressive realisation of economic, social and cultural rights is a complicated issue. For example, with respec t to the clause “the maximum of available resources”, it has been argued by one commentator that “[I]t is a difficult phrase – two warring adjectives describing an undefined noun. ‘Maximum’ stands for idealism; ‘available’ stands for reality. ‘Maximum’ is the sword of human rights rhetoric; ‘available’ is the wiggle room for the state”.

25 So far, it has been impossible to develop a comprehensive method for analyzing and assessing resource availability and usage. In response, it has been suggested by Audrey Chapman to change the approach for evaluating compliance with the standards of the Covenant.

26

In addition to measuring progressive realisation, she has proposed to identify violations of economic, social and cultural rights as a complementary approach. Linking up with the Limburg Principles, which already contain a section on violations 27 , and General

Comment no. 3, she suggests to distinguish between three types of violations: violations resulting from actions and policies on the part of governments; violations related to patterns of discrimination; and violations related to a state’s failure to fulfil the minimum core obligations resulting from specific rights.

28 This idea was taken up by the

Centre for Human Rights of Maastricht University, which hosted an expert meeting in

January 1997 to explore this proposal. The result of this seminar was the adoption of the so-called Maastricht Guidelines on Violations of Economic, Social and Cultural

Rights.

29 These Guidelines depart from the acquis of the Limburg Principles and

General Comment no. 3 and distinguish between violations through acts of commission and violations through acts of omission. In other words, violations can either occur through the direct action of states or other entities insufficiently regulated by the state, or through the omission or failure of states to take the necessary measures stemming from legal obligations. The Guidelines present a number of examples of both categories.

30 Both the Limburg Principles and the Maastricht Guidelines were meant to support the work of the Committee and to strengthen implementation and supervision of the Covenant.

24 General Comment no. 3, para. 10-12.

25 R.E. Robertson, Measuring State C ompliance with the Obligation to Devote the ‘Maximum

Available Resources’ to Realizing Economic, Social and Cultural Rights, in: Human Rights

Quarterly, Vol. 16 (1994) at p. 694.

26

A.R. Chapman, A “Violations Approach” for Monitoring the International Covenant on

Economic, Social and Cultural Rights, in: Human Rights Quarterly, Vol. 18 (1996), pp. 23-66.

27 Limburg Principles, Part I D (paras. 70-73).

28 Chapman, at p. 43.

29 Published in the Human Rights Quarterly, Vol. 20 (1998), pp. 691-705.

30 See Guidelines no. 14 and 15.



47

48

General Comment no. 12 on the right to adequate food

The General Comments on the right to food, education and health, adopted by the

Committee in 1999 and 2000, reflect to a certain extent the conceptual developments discussed above, plus some other ideas which originated in academic thinking and ngo contributions about economic, social and cultural rights. This can be seen from General

Comment no. 12 on the right to adequate food.

31 This lengthy comment deals with several aspects of Article 11 of the Covenant, such as its normative content, obligations and violations, implementation at the national level and international obligations of States Parties and international organisations. As far as the normative content of the right is concerned, the Committee is of the view that the right to adequate food is realized when every man, woman and child, alone or in community with others, has physical and economic access at all times to adequate food or means for its procurement. This broad interpretation not only refers to the nutritional aspect of food as a means to stay alive, but also to the economic activity of food production for subsistence and make a living.

Core content

Next, the Committee identifies the socalled ‘core content’ of the right to adequate food.

This concept needs some explanation. As has been outlined above, General Comment no. 3 uses the notion of “minimum core obligations to ensure the satisfaction of, at the very least, minimum essential levels of each of the [Covenant] rights”. One may argue that core obligations emerge from the core content (or minimum essential level) of each separate right. In other words, the core content of a right is its essence, that is, those essential elements without which a right loses its substantive significance as a human right.

32 This concept is useful for two reasons. The first reason is the need to clarify the normative content of economic, social and cultural rights: what does a specific right really embody? The second reason is the need to make the concept of violations of economic, social and cultural rights more concrete. Non-observance of the core content of a right would then amount to a violation of the right concerned. The

Committee in its General Comment on the right to adequate food then defines the core content of this right. It implies “the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture; the accessibility of such food in ways that are sustainable and that do not interfere with the enjoyment of other human rights.” 33

Identifying obligations and violations

Departing from Article 2(1) of the covenant and General Comment no. 3, the

Committee then defines the nature of state obligations emanating from the right to adequate food. For that purpose, the Committee uses another concept developed in academic thinking. This is the so-called typology of obligations, or three types of obligations on States Parties meant to specify obligations of states and better identify violations of rights. This typology has been constructed by the former Special

Rapporteur on the Right to Food of the UN Commission on Human Rights, Mr. Asbjorn

Eide.

34 In its General Comment, the Committee distinguishes between state obligations to respect , to protect , and to fulfil . In addition, the obligation to fulfil incorporates both

31 Adopted in May 1999, UN Doc. E/C.12/1999/5.

32 Compare Limburg Principles, para. 56. See for a discussion of this concept, Fons Coomans,

The right to education as a human right: an analysis of key aspects, UN Doc. E/C.12/1998/16, paras. 9-16.

33 General Comment no. 12, para. 8. The Committee further specifies the meaning of the concepts ‘dietary needs’, ‘free from adverse substances’, ‘cultural or consumer acceptability’,

‘availability’ and ‘accessibility’. See paras. 9-13.

34 See his Final Report, The Right to Adequate Food as a Human Right, UN. Doc.

E/CN.4/1987/23. For the application of the typology of obligations to the right to education, see

F. Coomans, supra note 32, paras. 25-28 and p. 21.



an obligation to facilitate and an obligation to provide . A few examples may explain how this typology works with respect to the right to food. The obligation to respect existing access to adequate food requires states not to take any measures that result in preventing such access, for example, evicting people from their land. The obligation to protect requires measures by the state to ensure that corporations or individuals do not deprive individuals of their access to adequate food, for example, big landowners chasing small farmers away from their land or large scale plantations occupying land held by small farmers. The obligation to fulfil (facilitate) implies that the state must proactively engage in activities intended to strengthen people’s access to and utilization of resources and means to ensure their livelihood, for example, starting a policy and programme on land reform meant to faciltate access to agricultural land for small farmer families. The obligation to fulfil (provide) means that states have an obligation to ensure that right directly, for example by providing food directly whenever an individual or group is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at their own disposal. This obligation is applicabe, for example, in cases people die of starvation due to natural disasters or are being displaced due to armed conflict.

35

In determining what are violations of the right to adequate food, the Committee links up with the language of General Comment no. 3 by saying that a violation occurs when a state fails to ensure the satisfaction of, at the very least, the minimum essential level required to be free from hunger. Violations may occur through the direct action of the state itself or other entities insufficiently regulated by the state. Examples include the discriminatory denial of access to food to particular individuals or groups, or the prevention of access to humanitarian food aid in internal conflicts or other emergency situations.

36

Benchmarks

The Committee not only uses the concept of a core content to identify violations, but also asks states to set verifiable benchmarks for national and international monitoring state performance. Benchmarks are targets established by governments themselves in relation to the implementation of each of the economic, social and cultural rights. These benchmarks may be quantitative (for example, a specific number of hospital beds per

10.000 inhabitants to be realised within a specific time frame) or qualitative (for example the development of a curriculum for intercultural education for primary schools within a period of three years). Therefore, benchmarks will differ from one state to another, reflecting both the availability of resources and the policy choices and priorities made by governments. In its General Comment on the right to food, the

Committee observes that implementation at the national level “will require the adoption of a national strategy to ensure food and nutrition security for all, based on human rights principles that define the objectives, and the formulation of policies and corresponding benchmarks”.

37

In my view, these General Comments are of major importance in shedding more light on the content of treaty standards in terms of rights and obligations. They give important guidelines and clues for governments for national policy and legislation with a view to implementation of the rights. They also provide the Committee with criteria for better monitoring and assessing state performance in the field of economic, social and cultur al rights. Finally, the general comments are useful for ngo’s in holding states accountable for treaty compliance and analysing and monitoring governmental policy in terms of human rights obligations.


36 General Comment no. 12, paras. 17-19.




49

50

V. THE HUMAN RIGHTS DIMENSIONS OF POVERTY

Recently, the Committee has taken up the issue of the human rights dimensions of poverty eradication policies. It has published a statement on that subject, the purpose of which is to encourage the integration of human rights into poverty eradication policies by outlining how human rights can empower the poor and enhance anti-poverty strategies.

38 The Committee is of the view that poverty constitutes a denial of human rights. From the perspective of human rights, poverty may be defined “as a human condition characterized by sustained or chronic deprivation of the resources, capabilities, choices, security and power necessary for the enjoyment of an adequate standard of living and other civil, cultural, economic, political and social rights”.

39 The

Committee then lists a number of essential characteristics of the international human rights framework which should be part of anti-poverty policies and strategies. These include the relevance and interdependence of all human rights for anti-poverty strategies, the application of the principles of non-discrimination and equality in antipoverty policies, the principle of active and informed participation of those affected by anti-poverty policies, in particularly vulnerable groups, and finally, the principle of accountability for compliance with (core) obligations by the state and other dutyholders, such as international organisations.

40 It is a good example of a human rights approach to development related issues. This statement of the Committee links up with the strategy initiated by UNDP to integrate human development and human rights.

41

VI. AN OPTIONAL COMPLAINTS PROCEDURE

Presently, the Covenant lacks a procedure which offers individuals and groups the possibility to lodge a complaint with the Committee about an alleged violation of a right listed in the Covenant. The Committee has extensively discussed the pro’s and con’s of such a procedure and has made a proposal for a draft treaty text which is the subject of discussion within the framework of the UN Commission on Human Rights.

42 Such a complaints procedure would greatly strengthen the supervisory role and impact of the

Committee. It would give the Committee the opportunity to give its views about such complaints, comparable to the already existing complaints procedure under the

Optional Protocol to the International Covenant on Civil and Political Rights. Without going too much into detail, this section will discuss briefly the arguments in favour of the establishment of such a complaints procedure in the form of an optional protocol to the Covenant.

43

38 Poverty and the International Covenant on Economic, Social and Cultural Rights, UN Doc.

E/C.12/2001/10, adopted on 4 May 2001, para. 3.

39 Idem, para. 8.

40 Idem, paras. 9-18.

41 See UNDP’s Human Development Report 2000, Human Rights and Human Development,

New York/Oxford, 2000, notably chapter 4.

42 See UN Doc. A/CONF.157/PC62/Add.5, Annex II and UN Doc. E/CN.4/1997/105. See generally, F.Coomans, F. van Hoof (eds.), The Right to Complain about Economic, Social and

Cultural Rights, Utrecht, Netherlands Institute of Human Rights, SIM Special No. 18, and K.

Arambulo, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights – Theoretical and Procedural Aspects, Antwerp: Intersentia-Hart, 1999. See also UN Commission on Human Rights Resolution 2001/30.

43 This overview is partly based on the analytical paper on an Optional Protocol prepared by the

Committee in December 1992, see UN Do. A/CONF.157/PC/62/Add.5, Annex II.



A. Effects of scrutiny at the international level for the application of standards at the national level

As long as the majority of the provisions of the Covenant are not the subject of any detailed scrutiny at the international level by the Committee, it is not very likely that they will be subject to such scrutiny at the national level by a judicial body either. The main reason is for this is that treaty provisions which are stated in very general terms are not very likely to be applied directly or indirectly by judicial or administrative bodies, because of the lack of clarity about their implications for the domestic legal order. The complaints procedure could fill that gap, because the Committee could give authoritative interpretations of treaty standards. From this perspective, a complaints procedure would help to tackle and rebut arguments about the alleged non-justiciable nature of economic, social and cultural rights.

44

B. Limitations of the reporting procedure

The reporting procedure is not the right mechanism to deal with specific cases and the application of pieces of national legislation in concrete cases. The reporting procedure is suitable to deal with the general situation of the level of realisation of economic, social and cultural rights in a given country. In addition, the success of the reporting system depends on the willingness of the government to submit a report and to take part in the dialogue with the Committee. Even alternative information coming from ngo’s usually lacks the detailed and precise nature necesary for an in-depth case analysis. Therefore, the Committee presently does not have an instrument to deal with alleged violations of the Covenant provisions in individual cases. A complaints procedure brings concrete and tangible issues of alleged violations of rights into play for which individuals seek relief. This cannot be done in the framework of the reporting procedure. A particular case would require the complainant to submit detailed and precise information in writing and the government to respond in the same manner. The procedure would force the complainant to draft his or her complaint in precise formulations, framed in terms of rights and obligations under the Covenant. This information would concern the practical significance of a treaty standard in a concrete case, which is impossible under the reporting procedure.

C. Added value of the Committee’s views

The collected views of the Committee in individual cases based on the complaints procedure would be of a much greater value in shedding light on the meaning of the various Covenant rights than either the Committee’s general comments or concluding observations. The collected views would constitute a kind of case law. In addition, they would provide authoritative interpretations of key issues, such as: the meaning of progressive realisation versus retrogressive measures; the meaning of availability of resources in a concrete case; the attitude of the government: inability versus lack of political will. A small number of cases would already be sufficient to develop case law about the content, scope and application of the Covenant rights. Although views or findings of the Committee in a concrete case would not be binding upon a State Party, they are powerful legal opinions which cannot be easily neglected by a state. A view of the Committee in a case produces a concrete result in a matter of concern for a person, which is likely also to generate more general interest in society, because of the effects it may have for other, comparable cases.

D. Stimulus for governments

The mere possibility that complaints might be brought before an international forum may or even should stimulate governments to ensure that effective remedies are available at the national level. A complaints procedure at the international level would

44 See the report on the UN workshop on the justiciability of economic, social and cultural rights,

UN Doc. E/CN.4/2001/62/Add.2.



51

52 also strengthen the recognition of economic, social and cultural rights. It would also stimulate governments to adopt and implement legislative and policy measures to comply with obligations under the Covenant, because in case it does not, there will be a risk of facing one or more complaints.

F. Acknowledgement of the indivisibility of all human rights

If the principle of the indivisibility, interdependence and interrelatedness of civil and political rights and economic, social and cultural rights, confirmed in the Vienna

Declaration and Programme of Action adopted by the Second World Conference on

Human Rights in 1993, 45 is to be taken seriously in the work of the UN, it is essential that a complaints procedure be established under the Covenant, thereby redressing the imbalance which presently exists. There already is a complaints procedure under the

Covenant on Civil and Political Rights which is open for alleged victims of violations of rights under that treaty.

G. Clarification of third party responsibility

Although a state bears the responsibility for realisation or lack of realisation, observance or violation of the ICESCR provisions, a complaints procedure could also help to determine the nature of third party involvement in and responsibility for the violation of economic, social and cultural rights in concrete cases, such as employers, big landowners, transnational corporations, international financial organisations (IMF,

World Bank). An example is the conflicting obligations of states through, on the one hand, international human rights obligations and, on the other hand, international financial agreements pressed for by international donors.

46

H. Stimulus for ngo’s

An Optional Protocol to the Covenant would be of enormous support and stimulus for ngo’s working in the field of economic, social and cultural rights. It could strengthen their work for the implementation of economic, social and cultural rights at the domestic level, because lodging a complaint with the Committee then becomes a realistic option for enforcing these rights, and can be used as a tool to exert pressure on governments to observe their treaty obligations that they have taken up voluntarily.

I. Other international complaints procedures already exist

In the field of economic, social and cultural rights, there are already complaints procedures at the international level which deal with alleged violations of these rights,

These include the International Labour Organisation special procedure with respect to the freedom of association in the field of trade union rights and representations under

Article 24 of the ILO Constitution submitted by national or international employers’ or workers organisations; the UNESCO Complaints Procedure in the field of any of the rights which fall within UNESCO’S field of competence, that is education, science and culture; 47 the Collective Complaints Procedure adopted as a Protocol to the European

Social Charter in 1995; 48 the Optional Protocol to the UN Convention on the Elimination of All Forms of Discrimination Against Women adopted in 1999.

49 So states have already accepted voluntarily the possibility to denounce alleged violations of economic, social and cultural rights before an international body of experts. This means that they

45 UN. Doc. A/CONF.157/23, para. 5. Paragraph 5 adds: “The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.”

46 See for an example the situation in Uganda described in the report of the UN Special

Rapporteur on the Right to Education, UN. Doc. E/CN.4/2000/6/Add.1, paras. 29-38.

47 UNESCO Doc. 104 EX/Decision 3.3, adopted in 1978 by the Executive Board of UNESCO.

48 Entered into force on 1 July 1998.

49 Not yet in force.



53 have also accepted the competence of such an international body to give its views about a complaint.

J. Strengthening international accountability

A complaints procedure at the international level would strengthen the accountability of governments before an international body for the manner in which these governments have complied with their obligations under the treaty. These governments will then be under a strong pressure to justify their policies, their acts or their failure to act. Often an individual case reflects a more general pattern of non-observance of treaty obligations in the country concerned. The possibility of international accountability may also raise the pressure upon the government coming fro m ngo’s, commentators and other states to observe the standards which it has voluntarily adopted. An international complaint promotes awareness among the public at large about the way the government is complying with its obligations.

K. An international complaints procedure as an instrument of last resort

Usually, a complaint will only reach the international level once domestic legal remedies have been exhausted. So there will be ample opportunity for the state concerned to rectify a situation which is the subject of a complaint. In addition, the complaints procedure envisaged is optional which means that states are free to adhere to it or not. Moreover, the complaints procedure is not directed towards confrontation with the state, but its aim is to solve a case in accordance with the human rights obligations of the state. Part of the procedure is also the possibility to reach a settlement between the parties, facilitated by the Committee.

L. Remedy for victims

Finally, and most important, in some cases a complaint at the international level, and the views or findings adopted by the Committee, will lead to a remedy for the victim.

This could mean: the stop of the violation; compensation for the harm incurred; a commitment by the government to observe its treaty obligations, for example to take specific policy measures or to amend legislation; the actual enjoyment of a right by the individual(s) who lodged the complaint. The possible outcomes would depend on the willingness of the government concerned to implement the views of the Committee, which are non-binding in legal terms.

VII. CONCLUDING REMARKS

It may be concluded that since 1987 the Covenant has gained importance and status, thanks to the combined efforts of the Committee, ngo’s and academics. They all contributed to give teeth to the Covenant and to strengthen implementation of rights at the national level and supervision at the international level. The Committee has developed the reporting procedure by holding states accountable through the dialogue, giving access to ngo’s and drafting concluding observations which assess the performance of states and contain concrete suggestions for a better implementation.

The Committee has also made good progress in clarifying the meaning of the rights listed in the Covenant in terms of their content and state obligations in the General

Comments. It has also taken up new issues, such as the human rights dimensions over poverty reduction. This shows that the Committee is willing to deepen its mandate and interpret it in a dynamic way, reflecting changing approaches and views about human rights implementation. It may be said that the Committee has made an important contribution to tackling the problems regarding implementation and supervision mentioned in the introduction of this paper, although it has no authority over other actors than states, such as international financial institutions and or corporations. It should be emphasised, however, that the reporting procedure is a rather weak form of



54 international supervision, depending on the willingness of the state to cooperate, usually framed in diplomatic language and manners, and excluding individuals. Also ngo’s are not directly involved in the dialogue with the state representatives. Therefore, it is crucial that a complaints procedure be adopted as an optional protocol to the

Covenant. Such a procedure would give direct access to individuals and would deal with very specific and detailed claims of non-observance of Covenant obligations by states. Such a procedure would also provide an opportunity for the Committee to test its General Comments in ‘real’ cases dealing with the situation which individuals face in day-to-day life about alleged violations of their economic, social and cultural rights.

Collectively, the views of the Committee would constitute ground-breaking case law which will have its impact far beyond the parties in a case, influencing also the conduct of governments of other states.



55

Justiciability of Social and Economic Rights

Gunter Maes

Fund for Scientific Research - Flanders

Antwerp University

Introduction

1. During the drafting of the International Bill of Rights, the General Assembly decided that two separate human rights covenants should be prepared, one on civil and political rights and another on economic, social and cultural rights. The first step in the human rights movement had embodied civil rights –rights and freedoms of all civilians as human beings- in the Constitution and in the rule of law of modern states. They are fundamental human rights: regulatory principles which restrict and guide the state power, and they are also the touchstone for the legitimacy of the Legislature and of the

Executive. They are the children of the classic liberal tradition, where fundamental rights are determined as immunities . In a liberal interpretation, they are described as

‘ Abwehrrechte’ : they issue a prohibition of State interference in a very large defined individual private sphere.

The socialistic tradition has continued the ethical logic of the civil liberties. The right to life –which is the most fundamental human right- means not only that the necessary safety is guaranteed and that the people are protected against arbitrary arrest and punishment. This rights is meaningless unless it is interpreted in a socialising sense. It encompasses the right to elementary food and the possibility to earn his bread by own work. The freedom of expression becomes only a reality when everyone has the possibility and the pecuniary resources to form his opinion. Religious education is essential –also in public education- in order to make the freedom of education a real freedom. In this tradition, fundamental rights are (also) ‘claim rights’ : a claim on material and social conditions in order to realise real freedom.

2. It was argued at the time of the drafting and subsequently often repeated that the two sets of rights were of a different nature and therefore needed different controlling instruments. Civil and political rights were considered to be ‘absolute’ and ‘immediate’, where economic, social and cultural rights were held to be programmatic, to be realised gradually, and therefore not a matter of rights. Some authors mean that social human rights are not really rights, but aspirations, aims of policy, elements to be achieved progressively (cf. art. 2 CESCR) … 1 Others recognize the legal status of those rights but deny them enforceability: the promotional obligations arising out of such rights cannot be justiciable 2 . They are more political, they cannot easily be applied by courts

1 Inter alia: P.

O RIANNE

, ‘Mythe ou réalité des droits économiques, sociaux et culturels’,

Présence du droit public et des droits de l’homme – Mélanges offerts à Jacques Velu , Brussel,

Bruylant, 1992, t. III, 1871; F.

S UDRE , Droit international et européen des droits de l’homme ,

PUF, 1989, 134; A.

E IDE

, ‘Economic, social and cultural rights as human rights’, in A.

E IDE , C.

K RAUSE AND A.

R OSAS (eds.), Economic, social and cultural rights: a textbook , Dordrecht,

Martinus Nijhoff, 1995, 21-40

2 For a rebuttal of those views, see inter alia: E.W.

V IERDAG

, ‘The legal Nature of the Rights granted by the International Covenant on Econ omic, Social and Cultural Rights’, NYIL 1978, 69;

G.J.H.

V AN H OOF

, ‘The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of

Some Traditional Views’, in P.

A LSTON en K.

T OMASEVSKI (eds.), The right to food , (97), 102-105;

A.

E IDE

, ‘Future protection of economic and social rights in Europe’, in A.

B LOED , L.

L EICHT , M.

N OWAK , A.

R OSAS (eds.), Monitoring Human Rights in Europe. Comparing international procedures and mechanisms , Dordrecht, Martinus Nijhoff Publishers, 1993, 187 e.v. ; N.

J ACOBS , ‘La portée juridique des droits économiques, sociaux et culturels’, Rev. b. dr. int.

1999,

(19), 27-31; M.

B

OSSUYT

, ‘La distinction entre les droits civils et politiques et les droits



56 of law, and they need a lot of money to be respected. This means that civil and political rights need only state abstention whereas social rights need state intervention. It concerns human rights of the second generation, where second means: less important in the hierarchy of the norms. (Aspects of) Some of those presumptions are true and have to be recognized and make the justiciability (or even the legal character) of those rights difficult. But the exceptions may not in a general way deny the justiciability (or better: deny the enforceability) of those rights, or even more: deny to be law. Those presumptions –which are very clearly exposed in the paper of Dr. Vandenhole- are already long-existing and very hard to beat.

3. Although there is within the UN now almost universal acceptance of the theoretical

‘indivisible and interdependent’ nature of the two sets of rights, in reality economic rights remain largely ignored. The Committee on Economic, Social and Cultural rights has pointed out, that the international community as a whole continues to tolerate all too often breaches of economic, social and cultural rights which, if they occurred in relation to civil and political rights, would provoke expressions of horror and outrage and would lead to concerted calls for immediate remedial action. In effect, despite the rhetoric, violations of civil and political rights continue to be treated as though they were far more serious, and more patently intolerable, than massive and direct denials of economic, social and cultural rights 3 .

4. In this I shall also, from the very beginning, fully agree with the caveat that not all rights, all human aspirations may be qualified as human rights, because the significance of this expression might be eroded. Law is certainly not the only instrument for improving the well-being of humankind. Some expectations and legitimate aspirations are not more effective by qualifying them as rights or human rights. It is in a certain matter dangerous to weaken so the concept of human rights, and to give only an appearance of legal protection.

I. CONCEPTS

Justiciability

5. In the discussion of the legally binding of social rights, the concept of enforceability and the concept of justiciability are often used as synonyms. Justiciability in this sense refers to a right’s faculty to be subjected to the scrutiny of a court of law or another judicial or quasi-judicial entity. The court can apply the right in a specific case and this application can result in the further determination of the meaning of this right 4 . The key element in this definition is the rather formal aspect of the controlling body, which is seen in the theoretical concept of ‘separation of powers’ where there is a judiciary which is independent of the other powers. The judiciary makes decisions which are considered to be law, and those decisions have to be enforced. Without all those elements the rights in question are not (really) justiciable.

Enforceability

6. I think we have to make a difference in order to ‘ rescue’ in a certain sense social human rights. A difference will show that (some) social human rights are not necessary justiciable, but this does not mean that they are not enforceable: the lack of justiciability does not mean automatically that the individual has no protection by law. The concept of enforceability is more wide than justiciability. Enforceability means that an authority

économiques, sociaux et culturels’, Revue des droits de l’homme 1975, 783-820; M.

C RAVEN ,

The International Covenant on Economic, Social and Cultural Rights – A perspective on its development , Oxford, Clarendon Press, 1995, p. 6 e.v.

3 UN doc. E/1993/22 at 83, para 5.

4 K.

A RAMBULO , Strenghtening the supervision of the International Covenant on Economic,

Social and Cultural Rights: theoretical and cultural aspects’ , Antwerpen, Intersentia, 1999, 55



57

(of the State or an international one) receives complaints about the violations of a protected right, and gives redress by cancelling or rectifying the violation, or by awarding compensation for damage, or both. If the controlling authority is a court of law, the term ‘justiciability’ is to be preferred 5 .

7. Enforceability has also to be interpreted, and in my opinion this is the key difference between enforceability and justiciability, as an other way to enforce and to implement rules of international law (other than through a court of law, of a similar (quasi-judicial) authority). This is important to understand because in international law it is quite exceptional that the norms of international law can be enforced through courts of law or in a comparable manner. There are many other –more administrative- procedures, but they are not decisive to deny the conventional norms the status of binding law 6 .

Elements of enforceability

8. The reference to enforceability concerns in this way also a political supervisory system, for instance a body composed of representatives of States subject to the instructions of their governments. The composition of the body has important political characteristics, and the consequence will propably be that the supervisory system is also political. But even a body composed of independent experts is not necessary a legal body, unless it uses legal procedures. In this the procedures used are political 7 .

For economic and social rights the emphasis has so far tended more on political than legal procedures. During these procedures the rights become enforceable, but not necessary justiciable. In a political procedure there is –generally spoken- more attention given to the circumstances of the situation and even to the opportunity of a remark, a recommendation or a condemnation. There is also more possibility to discuss the concrete and further elaboration of the content of a specific provision.

Those are, for a lot of conventional provisions, often political questions with important financial implications and not only judicial issues: a democratic parliament or governement under parliamentory control first has to decide, to implement the vague provions, but the longer the governement waits, the less the judge has to wait … He is able to control vague norms, like some provisions on civil and political rights, but the real choice of policy is firstly up to the government or the parliament.

9. Reporting procedures are by their very nature somewhat more ‘political’, in that their main focus is on the development of States, while complaint procedures are more strictly legal (or tended to be). The Committee on Economic, Social and Cultural Rights has set out the objectives of reporting procedures, ‘to ensure that a comprehensive review is undertaken with respect to national legislation, administrative rules and procedures and practices in an effort to ensure the fullest possible conformity with the

Covenant

8 .’

10. Sometimes, the supervisory system is weakened by the lack of interest of the parties concerned. Under the reporting procedure of the European Social Charter,

States are obliged to send copies of the reports to ‘such of its national organisations as are members of the international organisations of employers and trade unions’ (art. 23), and those are entitled to make comments on the reports by states. In practice, very few organisations have made such comments, and the lack of interest of those

5 E.

V IERDAG , ‘The nature of rights granted by the ICESCR’, NYIL 1978, (69), 73

6 V AN H OOF , Mechanisms of international supervision , 1984, 100

7 A.

E IDE


B LOED , L.

L EICHT , M.

N OWAK , A.

R OSAS (eds.), Monitoring Human Rights in Europe. Comparing international procedures and mechanisms , Dordrecht, Martinus Nijhoff Publishers, 1993, 198

8 Committee of Economic, Social and Cultural Rights, General Comment 1, §2 (E/1989/22,

E/C.12/1989/5)



58 organisations has deprived the supervisory system of a potentially important source of information 9 .

11. Those so-called political procedures are not a priori less important or do not give ipso facto less protection. The right to an effective remedy need not be interpreted as always requiring a judicial remedy 10 . The process of transforming more or less general norms to norms which are more manageable and which contain more precise obligations of States is primarily a task for ‘political’ organs, where the examination of the respect of States of precisely formulated commitments could be more of a legal nature.

An important example in this respect is the Committee of Independent Experts of the

European Social Charter. The Committee has always manifested considerable independence, even before it was the Independent Committee. It has functioned as an impartial body whose task it is to discover what the law and the practice of the contracting parties is, and to oversee its conformity with the obligations undertaken by the States under the Social Charter 11 .

Justiciability: conditio sine qua non to be legally binding ?

12. The question arises wether justiciability is a necessary element for transforming a conventional provision into a ‘rule of law’. A provision which cannot be brought before a court in order to ensure respect, isn’t that a rule of law?

13. In a rather civil law concept of ‘a right’ the role of the court is a very constitutive aspect … When there is a dispute about the interpretation or the application of a provision and about the subjective rights which individuals derive from them, an appeal to the judiciary will be unavoidable: a judge will solve the battle of law, by using a legal norm in the concrete situation 12 .

Some authors want to introduce the concept of civil law also in international and human rights law. They emphasise that when there are rights of individuals in international law, there ought to be remedies, like –inter alia and for civil and political rights- expressed in

Article 13 ECHR 13 . But justiciability should be difficult because the wording of these provisions should not be very clear and complete to use them in a judicial decision 14 , and the international monitoring mechanisms in the conventions should be rather weak.

14. In public law, the status of a rule of law depends not only on the possibility to bring that article before a judge. Justiciability is certainly desirable –even on the national and international level-, but in public law a norm still belongs to the rule of law even if there is not a real justiciable remedy. In Belgium for instance, it is a rule of constitutional law that a government which looses the majority in the Chambers, has to resign. But if the government refuses in such a situation to resign, there is no court which can oblige the

9 A.

E IDE


B LOED , L.

L EICHT , M.

N OWAK , A.


10 cfr. General Comment no 9 – The domestic application of the Covenant, E/C.12/1998/24, nr.

9

11 A.

E IDE


B LOED , L.

L EICHT , M.

N OWAK , A.


12 W.

V AN G ERVEN

, ‘Algemeen deel’, in Beginselen van Belgisch Privaatrecht , Antwerpen,

Standaard wetenschappelijke uitgeverij, 1973, nr. 2; K. A RAMBULO , Strenghtening the supervision of the International Convenant on Economic, Social and Cultural Rights: theoretical and cultural aspects’ , Antwerpen, Intersentia, 1999, 55

13 E.

V IERDAG

, ‘The nature of rights granted by the ICESCR’, NYIL 1978, (69), 74

14 P.

A LSTON

, ‘No right to complain about being poor: the need for an optional protocol to the

Economic rights covenant’, in A.

E IDE EN J.

H ELGESEN (eds.), The future of human rights protection in a changing world , 1991, 86



59 government to resign … The refusal means in fact the end of the constitutional state … but it doesn’t mean de jure that the rule concerned is not a rule of law. In my view, the rather civil law option in relation to the examination of the justiciability and the enforceability of social rights brings us to the denial of the sometimes positive law character of social rights and on the other hand to the denial of a certain form of enforceability/ justiciability.

15. The first important element which should be considered is the obligation of all State parties to an international human rights convention to insist that other State parties respect the human rights obligations they have undertaken. This is the result of the obligation of good faith in international law: the application of the rule

‘pacta sunt servanda’ .

The States are

–at a first level- bound vis-à-vis each other and without an active part for the citizen. The States are engaged collectively to respect those rights. It is a formal engagement in the international community and the changes of governments and of political systems have no impact on them (or: may not have any impact) 15 .

16. Secondly, we need to consider that, at the international level, there are different

‘monitoring’ and ‘control’ mechanisms, which are primarily political or primarly legal, but which first aim is the protection of human rights. The dichotomy between them can be applied either to the composition of the body or to the procedures used.

Reporting procedures are by their very nature somewhat more political in that their main focus is developping a dialogue which can take into account the various possibilities of states, while complaint procedures are more strictly legal 16 .

A body is political if composed of representatives of states who are subject to the instructions of their government. A body of independent experts is not, however, necessarily a legal body, unless it uses legal procedures.

17. We also have to agree –with deeply regret- that in some cases of violations of social rights a cour decision will not end the violation. The judicial decision is only an ethical reprimand to the State. Someone who has insufficient food or insufficient housing will not necessarily obtain satisfaction by invoking in a court of law the right to food or the right to shelter which is an element of an international convention. A judicial decision will help only in cases where the necessary resources are available, i.e. where the state can help but neglects to do so. Where the state is too poor to fulfil its obligations in terms of social rights, a judicial decision remains meaningless.

18. In practice there are different shades of political or legal bodies and mechanisms involved in the international protection of human rights. For economic and social rights, the emphasis has so far tended to be more on the political than the legal, but this is gradually changing 17 . The provisions of the social human rights treaties are becoming more and more enforceable and even justiciable. But there is still room for improvement …

15 F. R IGAUX

, ‘Droit international et droits de l’homme’, J.T.

1988, 700, nr. 4

16 A. E IDE , Future protection of Economic and Social Rights in Europe, in A.

B LOED , A.

L EICHT ,

M.

N OWAK , A.

R OSAS , Monitoring Human Rights in Europe: Comparing international Procedures ans mechanisms , Dordrecht, Martinus Nijhoff Publishers, 1993, (187), 199

17 A. E IDE , Future protection of Economic and Social Rights in Europe, in A.

B LOED , A.

L EICHT ,

M.

N OWAK , A.

R OSAS , Monitoring Human Rights in Europe: Comparing international Procedures ans mechanisms , Dordrecht, Martinus Nijhoff Publishers, 1993, (187), 199



60

II. IN FORO INTERNO

19. In the internal order, a norm of an international convention has - in general and without many specifications- internal direct effect, if the words of those norm is sufficiently clear and precise (complete) 18 , in order to use that norm by the examination of a situation that should violate the content of the norm concerned, and without the need of pre-existing internal executive measures 19 . But the caselaw of the ‘Court de

Cassation’ goes even further and holds that when there is a conflict between an article of the internal legal order and an article of an international convention which has direct effect in the internal legal order, the conventional norm has to prevail (primacy of conventional norms).

20. Belgium case-law generally holds that the provisions in the conventions on economic, social and cultural rights are not sufficiently clear and precise to produce individual subjective rights that can be claimed in a court of law. This does not mean that those provisions are lawless. In the ‘objective contentieux’, when the legality of norms has to be examined, those conventional provisions institute the obligation of non-retrogressive measures. The three highest Courts (Court de Cassation, Conseil d’Etat and Court d’Arbitrage) have in connection with Article 13 CESCR recognised the prohibition of retrogressive measures 20 . This means that the State authorities may not retrograde, otherwise they fail to appreciate the Convention. Legislation, existing at the time the State became party to the Convention 21 (or became internally bounded by the Convention 22 ) and protecting already some elements of the content of the covenant provision, can not be changed by new provisions which give less protection. By acting in another way, the State violates the provision of the Convention. The level of protection on that time is –in a normal economic situation- acquired.

III. IN FORO EXTERNO

A. By means of conventions on civil and political rights

21. There are some methods –already applied- to bring the concerned social rights to a

(existing internal or international) judiciary. This in despite of important doctrine which says that ‘ les droits économiques, sociaux et culturels, en tant que catégorie distincte de la proclamation in ternationale des droits de l’homme, appartient au domaine des

18 cfr. Cass. 21 April 1983, R.C.J.B.

1985, 22

19 Cass. 27 mei 1971, J.T.

1971, 460 e.v. ; voor de retro-acten: Rb. Brussel, 6 februari 1967, n.g.; voor uittreksel zie J.

S ALMON

, ‘Le conflit entre le traité international et la loi interne en

Belgique à la suite de l’arrêt rendu le 27 mai 1971 par la Cour de Cassation’, J.T. 1971, 530 en

Brussel, 4 maart 1970, J.T. 1970, 413

Naderhand bevestigd in o.m.: Cass. 14 januari 1976, A.C.

1976, 547 met conclusie F.

D UMON ;

Cass. 26 september 1978, A.C.

1978-79, 116; Cass. 26 maart 1980, A.C.

, 1979-80, nr. 473 met noot F.D.; Cass. 4 april 1984, A.C.

1983-84, 1029 met conclusie; Cass. 16 april 1984, A.C.

1983-84, nr. 477; Cass. 13 september 1984, A.C.

1984-85, nr. 39; Cass. 17 september 1987,

A.C.

1987-88, nr. 36; Cass. 20 januari 1989, A.C.

1988-89, nr. 299; Cass. 10 mei 1989, A.C.

1988-89, nr. 514 met conclusie P IRET ; Cass. 1 april 1993, A.C.

1993, 350; Cass. 14 april 1994,

A.C.

1994, 372; Cass. 13 mei 1996, A.C.

1996, 446

J.

V ERHOEVEN

, ‘La notion d’applicabilité directe du droit international’, R.B.D.I.

1981, 247-250; R.

E RGEC

, ‘Le contrôle juridictionnel de l’administration dans les matières qui se rattachent aux rapports internationaux: actes de gouvernement ou réserve de pouvoir discrétionnaire’, Revue de droit international et de droit comparé 1986, 103

20 R.v.St., nr. 32.989 en 32.990, 6 september 1989, A.P.

1990, 276; Cass. 20 december 1990;

Arbitragehof, nr. 33/92, 7 mei 1992, B.S.

4 juni 1992

21 Raad van State

22 Hof van Cassatie en Arbitragehof



61 principes souhaitables: ils font partie de la nébuleuse des droits de l’homme mais ne s’inscrivent pas dans le champ du droit 23 .’

22. There is the possibility that social rights will become justiciable by interpreting some other conventions and treaties holding civil and political rights, in a (rather) ‘social’ way.

The distinction between the two categories of rights cannot be upheld with strict rigidity as some declare. The different types of human rights are universal and interdependent.

23. The European Court of Human Rights in Strasbourg has theoretically overcome the summa divisio 24 between civil rights on the one hand and social rights on the other. In the well-known Airey-case, the Court decided t hat ‘ whilst the Convention sets forth what are essentially civil and political rights, many of them have implications of a social or economic nature … The mere fact that an interpretation of the Convention may extend into the sphere of social and economic rights should not be a decisive factor against such an interpretation; there is no water-tight division separating that sphere from the field covered by the Convention 25 ’.

More generally, it means that some conventional rights are interpreted in such a way that some (aspects) of social rights have a certain degree of effectiveness, of respect, of justiciability.

24. Some authors divide the social rights into three types 26 : social rights imply the State obligation to respect, or to protect or to fulfil. First of all, States must respect, for instance, the resources owned by the individual, the freedom to choose a job; respect the right to join and form trade unions … This type of social right is closely connected to civil and political rights: those social rights are primarily rights of non-interference; the State and its agents have to keep their ‘hands off’.

25. At a second level, the State has the duty to protect against deprivation (by others).

This means, for instance, that existing law has to be protected against retrograde.

Here, the theory of positive obligations under civil and political rights can be very helpful.

26. At the third level the State has the obligation to fulfil the rights of everyone under economic, social and cultural rights. The allegation that social rights requires the

(extended) use of resources by the State, while civil and political rights do not require resources, can only be hold at this third level. Civil and political rights are mostly on the first and second level (positive obligations). It is an exception for them to be on the third level.

27. Van Hoof makes here a distinction between the obligation to ensure and the obligation to promote 27 . The first implies the duty ‘to create actively the conditions aimed at the achievement of a certain result in the form of a (more) effective realization of recognized rights and freedoms.

An example of this obligation in the field of civil rights can be found in article 6 ECHR: it is for the courts to ensure that a trial is fair and, accordingly, that counsel who attends trial for the apparent purpose of defending the

23 Inter alia: F. S UDRE , Droit international et européen des droits de l’homme , PUF, 1989, 134; in the same way: F. R IGAUX

, ‘Droit international et droits de l’homme’, J.T.

1988, 700, nr. 20

24 M.A. E

ISSEN

, ‘La Cour européenne des droits de l’homme’, Rev. dr. publ. et sc. pol.

, 1986,

1586

25 EHRM, 9 oktober 1979, Airey t. Ierland, Serie A, nr. 32, § 26

26 E.A. A LKEMA , De Reikwijdte van fundamentele rechten – de nationale en internationale dimensies. Preadvies NJV , Zwolle, Tjeenk Willink, 1995, 84 p.; Adviescomissie Mensenrechten,

Advies nr. 18: Economische, sociale en culturele mensenrechten.

27 G.

J.H.

V AN H OOF , ‘The legal nature of economic, social and cultural rights. A rebuttal of some traditional views’, in P. A

LSTON en K.

T OMASEVSKI , the right to food, Martinus Nijhoff publishers,

1984, 106



62 accused in his absence, is given the opportunity to do so 28 . The obligation to promote means that it is also designed to achieve a certain result, but in the case it concerns more or less vaguely formulated goals, which can only be achieved progressively or in the long term.

28. Certainly the first two levels can be implemented by using (aspects of) civil and political rights. There are different ways to do so: by widening civil and political rights, by means of a fair trial, by restraining other (human) rights and by using the equality principle. All those elements will be briefly discussed hereafter.

1. Widening civil and political rights

29. There are some important aspects of social rights protected in civil rights treaties, or by interpreting civil rights treaties in a social way. The case-law of the European

Court on Human Rights in Strasbourg is very renewing and opens new perspectives for the real protection of both kinds of human rights.

(Aspects of) Social rights in civil rights documents

30. First of all, the distinction between civil and political rights, and social rights has not been very consistently upheld in some human rights documents. In the European

Convention on Human Rights and in the Convention on Civil and Political Rights, the right to education, which is a cultural right, is regulated in Article 2 of the First Protocol

ECHR and in Article 13 CCPR. The European Convention also contains provisions on the protection of property, to which belongs also the right to compensation for expropriation or similar measures (Art. 1 of the First Protocol), and the right to form and join trade unions (Article 11). In those rights, important aspects of social rights can be detected. This is quite a marginal way of protecting social rights and of making them justiciable.

The positive obligations theory

Theory

31. A more important way to use civil and political rights in order to ensure social rights is the theory of the positive obligations, developed by the European Court of Human

Rights 29 . The Court decided that some conventional rights have no concrete significance in the light of present-day conditions, if they are not interpreted as containing positive obligations which the States have to fulfil. This means that civil and political rights does not only oblige the State to be ‘passive’, not to infringe the

‘enjoyment of a fundamental right’. The case-law stresses that respecting the charter requires more than only the obligation of non-interference. There are circumstances in which there is no room to distinguish between acts and omissions. This brings the two types of rights not only closer together, but it means also that the positive obligations of classic civil rights enhance (aspects of) social rights.

32. To control respect of the theory of positive obligations, it will be examined if there is a fair balance between the general interest and the interest of an individual. Is the

28 EHRM, 22 september 1994, Lala t. Nederland, Serie A, nr. 297-A

29 Inter alia: EHRM, 26 mei 1994, Keegan t. V.K., Serie A, nr. 290; Voor een algemene benadering zie o.m.: D.

S

PIELMANN

, L’effet potentiel de la Convention européenne des droits de l’homme entre personnes privées , Brussel, Bruylant, 1995, 72 e.v. ; J.

V AN S CHOKKENBROEK ,

Toetsing aan de vrijheidsrechten van het Europees Verdrag tot bescherming van de rechten van de mens , Zwolle, Tjeenk Willink, 1996, 58 e.v. ; F.

S UDRE

, ‘Les obligations positives dans la jurisprudence européenne des droits de l’homme’, Rev. Trim. D.H.

1995, 363-384; C.J.

F ORDER ,

‘Positieve verplichtingen in het kader van het Europees Verdrag tot bescherming van de rechten van de mens en de fundamentele vrijheden’, NJCM-bulletin 1992, 611-637; R.

L AWSON ,

‘Positieve verplichtingen onder het EVRM: opkomst en ondergang van de ‘fair balance’ test’,

NJCM-bulletin 1995, 558-573, 727-750



63 measure taken (or not taken) proportionate visà-vis the interest to be protected ? The

State has a very important and a wide margin of appreciation in this process 30 .

33. There is a very large body of important case-law to prove the real protection that positive obligations under civil and political convention-rights can give to individuals.

The most important articles in this are Articles 2(right to life), 3 (prohibition of torture) ,

8 (right to respect for private and family life) and Article 1, 1 st Protocol ECHR

(protection of property). I shall discuss here briefly a few important and very clear examples. Most of them are connected to the right to a decent home under the ECHR, but what is also protected by Article 11 CESCR 31 .

Article 8 in general

34.

Article 8 ECHR covers the right to respect everyone’s home. This article does not protect the owners but only the people living in the home. A home contributes to personal safety and to the well-being of the resident 32 .

35. The Commission considered that ownership (property) of a house is not in itself sufficient to establish it as one’s home, when one has never in fact lived in the house.

However, where continued ownership follows occupation of a house as one’s home, such ownership is evidence of a strong continuing link with the house. The fact that the

Gillows were not granted the licence to live in their home and that proceedings were taken against them for unlawful occupation of the house constituted an interference with their right to respect for their home.

36. The intention and the fact to live in, are sufficient as components for the applicability of the article. As a result, the caravan of a gipsy on her own ground has to be considered as a home in the sense of this article 33 . There is no need at all for the protection under Article 8 that the home is legally built. This is a very important element in socialising the case-law of the ECHR.

37. The Court has had the courage to balance the economic welfare of the country with the right of the individual to respect for his home. This happened in cases where there is an important link between the protection of Article 8 and infringements on private life and home by noise and disturbances. This principle is inter alia confirmed in the Lopez

Ostra case 34 . The applicant complained about smells, noise and polluting fumes caused by a plant sited a few metres from her home. She held the Spanish authorities responsible for having adopted a passive attitude. The Court concluded that the family had to bear the nuisance caused by the plant for over three years before moving house with all the attendant inconveniences. They moved only when it became apparent that the situation could continue indefinitely and when Mrs. Lopez Ostra’s daughter’s paediatrician recommended that they do so … Under these circumstances, the municipality’s offer could not be afforded complete redress for the nuisance and inconveniences to which they had been subjected. Having regard to the foregoing, and despite the margin of appreciation left to the respondent State, the Court considers that

30 R. L AWSON

, ‘Positieve verplichtingen onder het EVRM: opkomst en ondergang van de ‘fair balance’-test’, NJCM bulletin 1995, (558), 565-569

31 The States Parties to the present Covenant recogniz the right of everyone to an adequate standard for living for himself and his family, including adequate foodn clothing and housing, and to the continuous improvement of living conditions (…).

32 EHRM, 24 november 1986, Gillow t. V.K., Serie A, nr . 109, § 55; EHRM, 18 september 1996,

Loizidou t. Turkije, Serie A

33 EHRM, 26 september 1996, Buckley t. U.K., rec.

1996IV, 1271, § 54

34 ECRM, Arrondelle t. V.K., 7889/77, D.R.

19, 186; EHRM, 21 februari 1990, Powell and

Rayner t. V.K., Serie A, nr. 172; EHRM, 9 december 1994, Lopez Ostra t. Spanje, Serie A, nr.

303C, § 51



64 the State did not succeed in striking a fair balance between the interests of the town’s economic well being – that of having a waste-treatment plant- and the applicant’s effective enjoyment of her right to respect for her home and her private and family life

(§ 51).

38. It will depend on the conduct of the public authorities in comparison with the level of nuisance whether the Court is likely to hold that there has been no fair balance. The public authorities can be held responsible under Article 8 even for failures to act, to the extent that Article 8 is held to include a positive duty to protect the right to respect for the home and health and private life.

Article 8: respect for a home

39. The Court, however, did not recognize a breach of the protection of the respect for a home, when a gipsy family for whom there was no room on an official station, did not receive a ‘planning permission’ to live on their own ground 35 . More recently the Court principally recognizes that there are positive obligations under Article 8 in order to protect gipsy families , reasoning that ‘ the vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving at the decisions in particular cases. To this extent there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life.

But in concreto this very important principal decision is put away by using ‘ une interpretation consensuelle a minima’ 36 . The positive obligation to facilitate the gypsy way of life, does not embody, for the Court, the obligation to provide a sufficient number of stations where the gypsy families can install legally their caravans. By consequence, the Court does not control if the national authorities have taken the necessary positive measures in order to facilitate the gypsy way of life; so the Court does not balance the protection of the environment and the traditional gypsy way of life 37 .

40. The right to respect for a home is an essential element in respect for private life, and respect for physical and moral integrity. Although the Court has considered that modern societies consider housing of the population to be a prime social need, the regulation of which cannot entirely be left to the play of the market forces 38 , Article 8 does not provide everyone with the right to have a home. Even the right to a decent home is not protected by this article 39 . This interpretation should widen the applicability of this article in a very important way and should socialize the rather classical concept of respect for a home.

Article 8: right to a (decent) home

41. At this moment, the only possible way to qualify the lack of a (decent) home as an infringement of article 8 occurs probably when the lack of a decent home is also an infringement of the right to respect for their private and family life, when there is a disproportional balancing of the conflicting interests.

But the Court has decided that the duty to respect a person’s private and family life does not imply the obligation that every family lives in an individual home. The Court said in the Chapman-case: It is important to recall that Article 8 does not in terms give

35 EHRM, 25 september 1996, Buckley t. V.K., Rec.

1996IV, 1271, § 78-85

36 F.

S UDRE

, ‘À propos de l’autorité d’un précédent en matière de protection des droits des minorités’, Rev. Trim. D.H.

2001, (905), 911, nr. 16

37 EHRM, 18 januari 2001, Chapman t. U.K., § 96 en 114

38 EHRM, 21 februari 1986, James t. V.K., Serie A, nr. 98, § 47

39 EHRM, 21 november 1995, Velosa Bareto t. Portugal, Serie A, nr. 334



65 a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the

State provides funds to enable everyone to have a home is a matter for political not judicial decision

40

.

42. Some judges in the Court do not agree with this statement: We would also take issue with the relevance or validit y of the statement (…) that Article 8 does not give a right to be provided with a home. In this case, the applicant had a home, in her caravan on her land but was being prevented from settling there. Furthermore, it is not the

Court’s case-law that a right to be provided with a home is totally outside the ambit of

Article 8. The Court has accepted that there may be circumstances where the authorities’ refusal to take steps to assist in housing problems could disclose a problem under Article 8 (…) Obligations on the State arise therefore where there is a direct and immediate link between the measures sought by an applicant and the latter’s private life (Botta v. Italy judgment of 24 February 1998, Reports 1998I, p. 422, §§ 33-34) 41 .

The dissenters found their arguments inter alia in the Marzari-case where the Court held that the refusal of the State to house a person suffering a severe illness, can be an infringement of the protection of the private life of the person concerned

42

. The dissenters stress the wide concept of protection under the Convention, they aim at a real protection for the individual and cover also important elements of social human rights.

43. The denial of an autonomous and real right to a home and even to a decent home 43 , seems to be in contradiction with other case-law, where the right to a home falls within the ambit of the protection of article 8. The respect of private and family life is breached by the refusal to make an end on the lease so that the owner can live in 44 .

In an other case the judicial decision to make an end on the lease does not respect the protection of home of Article 8 ECHR 45 . It seems to me that in cases like Gillow the decision that Article 8 covers also the right to a home, this decision can be taken without implementing a (real, rather financial) obligation on the State. In the gypsy cases and others visà-vis poor people, the decision that Article 8 protects also the right to a decent home should also enhance a financial decision by the Court. The

European Court becomes very prudent, the State has a wide margin of appreciation to implement his positive obligations (and it seems also to do nothing).

44. The quality of the ‘environment’ of the home is protected and infringements need to prove a certain degree 46 . The concept of ‘environment’ is rather narrow, and does not cover for example inhuman situations caused by poverty. The question rises if the

Court will read Article 11 CESCR 47 in the text of Article 8 ECHR to respect in an

40 EHRM, 18 januari 2001, Chapman t. V.K

., § 99

41 Opinion dissidente commune bij EHRM, 18 januari 2001, Chapman t. V.K., nr. 7

42 EHRM, 4 mei 1999, Marzari t. Italië, Req. 36448/97

43 EHRM, 18 januari 2001, Chapman t. U.K., § 99

44 EHRM, 21 november 1995, Velosa Bareto t. Portugal, Serie A, nr. 334

45 EHRM, 18 februari 1999, Larkos t. Cyprus, Rec. 1999-I , 559

46 O;m.: EHRM, 21 februari 1990, Powell and Rayner t. V.K., Serie A, nr. 172; EHRM, 9 december 1994, Lopez-Ostra t. Spanje, Serie A, nr. 303-C; EHRM, 19 februari 1998, Guerra t.

Italië, Rec.

1998-I, 210; C.

PE LISSIER

, ‘Le droit de vivre dans des conditions materielles décentes d’existence protégé par l’article 8: le respect de la vie privée et du domicile’, Les cahiers de L’IDEDH 1996, (193), 207-208

47 The States Parties to the present Covenant recogniz the right of everyone to an adequate standard for living for himself and his family, including adequate foodn clothing and housing, and to the continuous improvement of living conditions (…).



66 indirect way the right to a decent home. The Chapman case does not provide a lot of hope 48 .

45. The case-law referred to, strengthens the view that a clear-cut dichotomy between

‘civil and political’ rights requiring merely ‘abstention’ or non-interference on the one hand, and ‘economic and social’ rights requiring positive action on the other, cannot be maintained. Effective realisation of certain typical ‘civil and political’ rights defined in the

Convention, as interpreted in the light of its object and purpose, sometimes also requires positive action. Positive obligations are not incompatible with the supervision system (justiciable) established by the Convention 49 .

46. There are even some restrictions on the principle of the widening of conventional rights: in the Johnston-case the Court held that

‘it is true that the Convention and its protocols must be interpreted in the light of presentday conditions … However, the

Court cannot, by means of evolutive interpretation, derive from these instruments a right that was not included therein at the outset 50 .

The evolutive interpretation of the

Convention can only update the Convention in the light of present-day circumstances, but not legislate new rights 51 .

2. Right to a fair trial

Article 6 and social rights and obligations

47. A second possibility of justiciability by means of classic human rights, is a procedural one. The right to a fair trial also has to be respected in cases concerning social rights, ‘in the determination of his civil rights and obligations’. The far-reaching procedural safeguards of Article 6 (§ 1) ECHR can also be applied to other human rights treaties ‘in the determination of civil rights and obligations’; those procedural safeguards are not specific for the rights and freedoms of this Convention, they have a general field of application. The article concerning a fair trial is the starting point for the very important interpretations that give protection to some (aspects of) social rights, or provide that certain claims and complaints have to come before a judge in a fair trial.

48. The first important element following from Article 6 of the ECHR relates to access to courts 52 . The provision does not establish binding standards on the level of social rights and obligations, but when a social right or obligation is interpreted as falling under the ‘civil rights’ of Article 6, §1 ECHR, it becomes a truly individual right with all necessary safeguards against any arbitrariness or discrimination. Everyone is entitled to a fair and public hearing with an independent and impartial tribunal established by law in the determination of his civil rights and obligations. The concept of ‘civil rights and obligations’ is not very well described in this article. A battle of interpretations has become reality. There has been an important evolution. It seems to be the interpretation of the Court that the decisive element for deciding the applicability of

Article 6 ECHR, is the impact on the patrimonial rights of the applicant: every dispute that has a patrimonial element as subject and which is founded on a lack of

48 EHRM, 18 januari 2001, Chapman t. U.K., § 99

49 M.

P ELLO NPÄ Ä, ‘Economic, social and cultural rights’, in R.

S T .

M ACDONALD , F.

M ATSCHER EN

H.

P ETZHOLD (eds.), The European system for the protection of human rights , Dordrecht,

Martinus Nijhoff Publishers, 1993, (855), 863

50 EHRM, 18 december 1986, Johnston t. U.

K., Serie A, nr. 112, § 53

51 P.

M AHONEY

, ‘Judicial activism and judicial self-restraint in the European Court of Human

Rights: two sides of the same coin’, HRLJ 1990, 57

52 EHRM, 21 februari 1975, Golder t. V.K., Serie A, nr. 18



67 appreciation of the patrimonial interest is covered by the protection in the determination of civil rights 53 .

49. The first step to bring social related claims under the protection of Article 6 ECHR, is taken in the cases Feldbrugge (on the right to health insurance allowances) and

Deumeland (on the right to a widow’s supplementary pension on the basis of compulsory insurance against industrial accidents). In those cases, the main issue was covered by the notion of civil rights in Article 6, because there is a mixture of elements of private and public law. The decisive criterion for making Article 6 applicable, was that the private law elements of the benefits in question were predominant in relation to coexisting public law elements and as a consequence the right to the benefits was a

‘civil right’ 54 .

The first group of cases were social securityrelated cases: health insurance, industrial accidents, etc. In all those cases, there is still existing a clear and precise link between the labour delivered and the allowance asked. Labour is here a necessary condition for the allowance: without labour, no allowance.

50. The second step was even more important. In the cases Salesi 55 and Schuler-

Zgraggen 56 is the protection by Article 6, § 1 ECHR extended to statute-based social security benefits, or even to social welfare, both with a clear public law character. The

Salesi case concerned social assistance and not social insurance. Social assistance belongs to the field of public law and has little private law aspects. Although Article 6 of the Convention is applicable, because Salesi was , in the words of the Court, claiming an individual, economic right flowing from specific rules laid down in a statute giving effect to the Constitution ’ 57 .

51. In Schuler-Zgraggen the Court upheld the trend of the Salesi-case. The Court stresses that ‘ Today the general rule is that Article 6 §1 does apply in the field of social insurance, including even welfare assistance’. The conclusion was justified because

SchulerZgraggen ‘ … was claiming an individual, economic right flowing from specific rules laid down in a federal statute …’. But she was denied a statute-based invalidity pension on the presumption that she was a married woman with a child that even without health problems, would not have returned to work. This presumption, without a reasonable factual evidence, violates Article 14 (prohibition of discrimination) together with Article 6 § 1 ECHR.

53 EHRM, 28 september 1995, Procola t.Luxemburg , Serie A, nr. 326, §39; F.

S UDRE

, ‘La

‘perméabilité’ de la convention européenne des droits de l’homme aux droits sociaux’, Pouvoir et liberté. Etudes offertes à Jacques Mourgeon , Brussel, Bruylant, 1998, 469, nr. 10 ; F.

S UDRE ,

‘Misère et convention européenne des droits de l’homme’, Cahiers de l’IDEDH 1994, (113),

119 ; B.

D E S MET en K.

R IMANQUE , Het recht op behoorlijke rechtsbedeling, Antwerpen, Maklu,

2000, nr. 6-31; P.

L EMMENS , Geschillen over burgerlijke rechten en verplichtingen. Over het toepassingsgebied van artikel 6, lid 1 EVRM en 14 lid 1 IVBPR , Antwerpen, Kluwer, 1982; P.

V AN D IJK EN G.J.H.

V AN H OOF , Theory and practice of the European Convention on Human

Rights , Den Haag, Kluwer, 1998, 392-407

54 EHRM, 29 mei 1986, Feldbrugge t. Nederland, Serie A, nr. 99 en Deumeland t. Duitsland, nr.100; E.P.

D

E

J

ONG

, ‘Artikel 6 Europese Conventie en de sociale zekerheid’, AA 1987, 242-

253; D.

P IETERS

, ‘Sociaal en toch burgerlijk recht. Twee arresten van het Europees Hof voor de

Rechten va n de Mens’, R.W.

1986_87, 528; B.

D E S MET EN K.

R IMANQUE , Het recht op behoorlijke rechtsbedeling, Antwerpen, Maklu 2000, nr. 14; F.

S UDRE

, ‘La ‘perméabilité’ de la convention européenne des droits de l’homme aux droits sociaux’, Pouvoir et liberté. Etudes offertes à Jacques Mourgeon , Brussel, Bruylant, 1998, 470

55 ECHR, 26 februari 1993, Salesi t. Italië, Serie A, nr. 257-E

56 ECHR, 31 januari 1995, Schuler-Zgraggen t. Zwitserland, Serie A, nr. 305-A

57 ECHR, 26 februari 1993, Salesi t. Italië, Serie A, nr. 257-E, § 18



68

52. The conclusion can be that irrespective of the nature of the allowance - either private law (e.g. an employment contract), either public law-, the disputes about the allocations need to be protected by all standards of a fair trial. Important to note is that the case-law of the Court is very well-balanced. Not only disputes on social benefits are covered b y Article 6, §1 but as disputes on the obligation to pay contributions under the social security system belong to the field of applicability of Article 6 58 . This is important in order to ensure that there will be a reasonable and a fair trial, with all the guarantees as described in Article 6 ECHR, such as the reasonable time-limit, have to be respected in every dispute about rights or obligations under a social security system. A fair trial is a very important, not only as such, but certainly as vehicle in order to protect other rights and to make them really justiciable in the classic sense. The decision on the dispute is the fruit of a precise examination of the case, with a lot of procedural safeguards. The (social) rights concerned are not embodied in the European

Convention on Human Rights, but the solving of the disputes is protected by the

ECHR.

Legal Aid

53. The right of access to a court can become a rather theoretical right if adapted help is missed. Law is so complicated and specialised that people who are not competent in the matter can not really successfully operate in a court.

54. This means not only that every person has the right to be assisted by a lawyer if the case and the concerned law is rather specialised (not in each and every dispute relating to a civil right) 59 , but also in some cases this assistance has to be free of charge. This lawyer must be sufficiently experienced in order to help really the civilian 60 . Otherwise it is a theoretic and illusory right.

3. Non-discrimination

Article 26 CCPR

55. A third way to make social rights justiciable by means of civil and political rights, is the use of the principle of equality (Art. 26 Convention on Civil and Political Rights

(CCPR), Art. 14 ECHR and later on the 12 th protocol ECHR). Some authors believe that this is the only possibility of making social rights justiciable. Those rights are not justiciable as such, but they become so by using the concept of non-discrimination: situations where persons are the subject of discrimination because of their sex, their race or religion or … in the exercise of a social rights, they become by using this principle also a holder of those social human rights 61 . The field of application of the rights granted may not be restricted on a discriminatory ground.

56. The Human Rights Committee, acting under the CCPR, adopted on 9 April 1987, after very long discussions, final decisions in some Dutch cases relating to social security. Through those cases it was, for the first time, settled that the nondiscrimination clause in Article 26 CCPR is applicable also in relation to the enjoyment of economic, social and cultural rights.

57. The Committee explains: Although Article 26 requires that legislation should prohibit discrimination, it does not of itself contain any obligation with respect to the

58 EHRM, 9 december 1994, Schouten en Meldrum t. Nederland, Serie A, nr. 304

59 ECHR, 9 oktober 1979, Airey t. Ierland, Serie A, nr. 32

60 ECHR, 13 mei 1980, Artico t. Italië, Serie A, nr. 37, § 33

61 M.

B OSSUYT , L’interdiction de la discrimination dans le droit international des droits de l’homme , Brussel, Bruylant, 1976, 218-219; F.

R IGAUX

, ‘Droit international et droits de l’homme’,

J.T.

1988, 700, nr. 20



matters that may be provided for by legislation. Thus it does not, for example, require any State to enact legislation to provide for social security. However, when such legislation is adopted in the exercise of a State’s sovereign power, then such legislation must comply with Article 26 of the Covenant

62

.

Discrimination because of sex has remained the area in which the application of Article 26 has most often occurred. Also race and colour are of great importance as suspect grounds for making any differentiations in social matters, e.g. allocation of social security benefits. But all the grounds mentioned in Article 26 CCPR can be used in connection with social rights. In the jurisprudence both of the Committee of Human Rights and of the ECHR nationality is adopted as a ground for discrimination. The Committee found a violation of Article 26 because of nationality, whereby French legislation afforded lower pensions to retired

Senegalese soldiers of the French army than to French citizens in an otherwise equal position 63 .

Article 14 ECHR

58. The European Court of Human Rights prohibits under Article 14 ECHR different treatment as discriminatory, if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised 64 .

Article 14 complements the other substantive provisions of the Convention and the

Protocols. Article 14 ECHR has always (until the 12 th protocol enters into force 65 ) to be invoked in relation with an other conventional right 66 , what is not necessary by article

26 CCPR. This conventional right has not to be breached in order to decide on the breach of the principle of non-discrimination: the dispute has only to fall within the ambit of the conventional right concerned.

59. The question in the Gaygusuz-case concerned the refusal to grant emergency assistance that was granted to persons who had exhausted their entitlement to unemployment benefit, on the ground that he did not have Austrian nationality which was one of the conditions of the act, was discriminatory.

60. This brings us to the next question: whether the emergency assistance falls within the ambit, or is protected by, Article 1, 1 st Protocol. Was there a link to the payment of contributions to the unemployment insurance fund, or was the emergency payment granted by the State to people in need without any link with the payment of contributions?

61. Article 1 of the first protocol ECHR protects – generally spoken - the right of property. The caselaw does not limit the notion ‘possessions’ to ownership of physical goods: certain other rights and interests constituting assets can also be regarded as property rights and thus as ‘possessions’. This widening of the concept opens the possibility to protect social security benefits under this article. The Commission has

62 Human Rights Committee, 9 april 1987, Zwaan-De Vries t. Nederland, Nr. 182/1984, 12.4 en

9 april 1987, Broeks t. Nederland, 172/1984

63 Human Rights Committee, 3 april 1989, Ibrahim Gueye and 742 other retired Senegalese members of the French Army t. Frankrijk, 196/1985

64 ECHR, Belgian linguistic case, 23 juli 1968, Serie A, nr. 6, §10

65

M.

W ITTINGER

, ‘Die Gleichheit der Geschlechter und das Verbot geschlechtsspezifischer

Diskriminierung in der Europäischen Mensenrechtskonvention. Status quo und die Perspektiven durch das Zusatzprotokoll Nr. 12 zur EMRK’, EuGRZ 2001, 272-279

66 Inter alia: M.

B OSSUYT , L’interdiction de la discrimination dans le droit international des droits de l’homme , Brussel, Bruylant, 1976, 134 e.v.; E.A.

A LKEMA , Studies over Europese

Grondrechten , 1978, 37 e.v.



69

70 always differentiated between, on the one hand, systems according to which, by the payment of contributions, an individual share in a fund is created, the amount of which can be determined at each particular moment, and on the other hand systems according to which the relation between the contributions being paid and the latter benefit is much looser, which makes the object of the possessions less adequately definable. The first is a property-creating system and claims to benefits constitute possessions in the sense of Article 1, while the second system is based on the principle of solidarity which reflects the responsibility of the community as a whole, and thus not create for the participant a identifiable part of the fund (collective security).

62. In the Gaygusuz-case the Court held about the emergency assistance, that the right to emergency assistance – insofar as provided for in the applicable legislation- is a pecuniary right for the purposes of Article 1 of protocol no. 1. That provision is therefore applicable without it being necessary to rely solely on the link between entitlement to emergency assistance and the obligation to pa y ‘taxes or other contributions’’.

Consequently, the right to the emergency assistance is linked to the protection of property. Only the patrimonial character of the benefit is decisive in order to be covered by the protection of property, rather than the link to the payment of contributions to an insurance fund. This is also a very important widening of the scope of protection of the protection of property under Article 1, 1 st protocol. When Austrian law refused emergency assistance on the ground of nationality, it was discriminatory.

However Gaygusuz is not entitled to a right, the refusal on the basis of his nationality breaches the principle of non-discrimination linked to the protection of property.

4. By Restraining Other Rights

63. The rights granted in conventions and treaties on civil and political rights are not absolute. There are circumstances where an interference in, or a limitation to, a right is legitimate due to considerations relating to the ‘general interest’. A final method to protect aspects of social rights by the use of civil and political rights, is then also the use of those social rights as an element of the concept of ‘general interest’ needed to restrain civil and political rights. Social rights are then relevant reasons for restraining civil and political rights even in the general interest. The court is invited to read in the concept of the general interest some (aspects of) social rights, such as the right to a

(decent) home.

64. In the case law of the ECHR there are some important examples. I shall focus on the protection of the tenants of a home in connection with the protection of property

(Art. 1, 1 st protocol).

65. In the case of James and others v. U.K., the tenants with very long leasing contracts and with rather extensive rights and obligations concerning the leasing goods, obtained the right under ‘The Leasehold Reform Act’ to acquire the freehold of the house under certain terms and conditions. In the past, the landlord received at the end of the lease contract, the property without compensation to the tenant. The trustees claimed a breach of the concerned right. The Court held that Article 1, 1 st

Protocol is not breached, because ‘ Eliminating what are judged to be social injustices is an example of the functions of a democratic legislature. More especially, modern societies consider housing of the population to be a prime social need, the regulation of which cannot entirely be left to the play of market forces. The margin of appreciation is wide enough to cover legislation aimed at securing greater social justice in the sphere of people’s homes, even where such legislation interferes with existing contractual relations between private parties and confers no direct benefit on the State or the



71 community at large. In principle, therefore, the aim pursued by the leasehold reform legislation is a legitimate one’ 67

.

66. In another case the right to housing was treated as a legitimate aim for restricting the right to a peaceful enjoyment of one’s possessions. In Austria important (social) rent reductions were alleged to violate Article 1, 1 st Protocol. The Court dismissed the applicants, because the domestic legislature has a wide margin of appreciation with regard to social and economic policies 68 . The use of the property of the owner can be regulated in order to protect the tenant by restricting the possibilities to end the contract, or by regulating the price, especially for poor people 69 . The importance of the great margin of appreciation can be proved by a case where not only the tenant needs protection but where the owner compelled by the financial necessity asks the expulsion, and the government does not act speedily, there is a breach of the protection of the owner’s property 70 .

B. Controlling procedures in social rights treaties

67. The social treaties themselves have some controlling elements. Most of the time, it is a political controlling system. Justiciability in the common sense is rather exceptional, but this are certain means in order to make the rights concerned enforceable (or justiciable in an other sense). I shall discuss very briefly the first two procedures because Dr. Coomans has focused on them in a more extended way. The third procedure is a specific and renewing element of the supervision of the ESC. It stresses that the lack of a (real) court of law does not imply the lack of justiciability, or better: enforceability.

Reports

68. Either the CESCR and the ESC have quasi the same conventional system of supervision: the State obligation of periodical State reports 71 . In those reports –and I focus especially on the CECSR- the State describes to which extent the relevant national policies adequately reflect the scope and content of each conventional right, and specifies the means by which this is realized. It is also important to clarify the judicial remedies, administrative procedures and other measures adopted for enforcing those rights and also the practice under those remedies and procedures. The most important elements of these procedure are the recommendations given by the

Committee after a process of dialogue with the State.

67 ECHR, 21 february 1986, James and others v. U.K., Serie A, n r. 98, § 47

68 EHRM, 19 december 1989, Mellacher t. Oostenrijk, Serie A, nr. 169

69 EHRM, 21 november 1995, Velosa Bareto t. Portugal, Serie A, nr. 334, § 35; EHRM, 28 spetember 1995, Spadea en Scalabrino t. Italië, Serie A, nr. 315-B, § 38

70 EHRM, 28 septem ber 1995, Scollo t. Italië, Serie A, nr. 315-C, § 38-39; B.

H UBEAU ,

‘Uitzonderingswetgeving inzake huurovereenkomsten en het ‘toezicht op het gebruik van eigendom’ (art. 1, al. 2 Eerste Protocol EVRM)’, (noot onder EHRM, 28 september 1995, Scollo t. Italië), Jaarboek Mensenrechten 1995-96, 264-268

71 N.

J ACOBS

, ‘La portée juridique des droits économiques, sociaux et culturels’, Rev. b. dr. Int.

1999, (19), 25 e.v.

P.

A LSTON (ed.), The United Nations ans Human Rights – A critical appraisal’,

Oxford, Clarendon Press, 1992, 475-487; F.

C OOMANS

, ‘De werkzaamheden van het VN-comité inzake Economische, sociale en Culturele Rechten’, NJCM-bulletin 1992, 861-874; M.

C RAVEN ,

The international Covenant on Economic, Social and Cultural Rights – A Perspective on its development , Oxford, 1995, 50-51; N.

S YBESMA -K NOL , Het internationaal verdrag inzake economische, sociale en culturele rechten’, Jaarboek Mensenrechten 1994, Antwerpen, Maklu,

1995, 73



72

General Comments of the Committee on Economic, Social and Cultural Rights

69. The Committee on Economic, Social and Cultural Rights is the primary body responsible for monitoring respect of the CESCR. First this monitoring was done by a political body in the line of the traditional a priori that a court cannot control in a competent way social rights. It is a duty of politicians. In 1986, a independent expert body was established 72 and since 1989 it has been issuing general comments and dealing with the interpretation of various provisions of the Covenant. Those General

Comments make more clear and precise the engagements of the State Parties and explain the content of the rights concerned, and this in order to help and to encourage them in the application of the CESCR. The existence of the General Comments is very important in order to secure the protection and the promotion of social rights. Those

General Comments are also of great importance by the examination of the State reports: the General Comments contain standards and guidelines in order to strengthen the respect of social human rights. The vagueness of some articles and some terms used in the Covenant become less, consequently the enforceability and even the justiciability become more and more realistic.

70. The Covenant itself opens only the possibility to establish consistent case-law concerning social human rights in connection with the examination of the State reports 73 . The General Comments are thus very important tools which contributes towards a the better understanding of the content of the social rights concerned.

71. While it is clear that such a procedure does not have as far-reaching possibilities for creating an institutionalised practice of interpretation as complaint procedures have, the general comments may have an impact on clarifying the meaning and the provisions and strengthening the possibilities for the CESCR provisions to be directly applied by courts of law. In General Comment No. 3 on the nature of State obligations under Article 2, §1 CESCR, the Committee on Economic, Social and Cultural Rights points out that while the concept of progressive realization constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time, the phrase must be seen in the light of the overall objective, which is to establish clear obligations for State parties to move as expeditiously as possible towards the full realization of these rights 74 .

72. The Committee on Economic, Social and Cultural Rights makes use of its general comments when considering state reports, for example in issuing suggestions and recommendations to a particular State party, the Committee may refer to one of the general comments as expressing the contents of a treaty obligation.

72 Zie alg.: I.

B OEREFIJN

, ‘De rapportageprocedure bij het Internationaal Verdrag inzake

Economische, Sociale en Culturele Rechten’, in M.K.C.

A RAMBULO , A.P.M.

C OOMANS en B.C.A.

T OEBES (eds.), De betekenis van de economische, sociale en culturele rechten in de

Nederlandse rechtsorde: vrijblijvend of verplichtend?

, Leiden, Stichting NJCM, 1998, 45-57. Van

1979 tot 1986 in een Werkgroep die ieder jaar gedurende drie weken vergaderde tijdens de eerste zitting van de Ecosoc. Op deze werking kwam evenwel heel wat kritiek. P.

A LSTON , ‘The

Committee on Economic, Social and Cultural Rights ’, in P.

A LSTON (ed.), The United Nations ans Human Rights – A critical appraisal’, Oxford, Clarendon Press, 1992, 475-487

73 F.

C OOMANS , ‘Stap voor stap: naar een versterkt toezicht op de naleving van het internationaal verdrag inzake economische, sociale en culturele rechten’, NJCM-bulletin 1997,

553; K.

A RAMBULO en B.

T OEBES

, ‘Valt er iets te klagen?’, NJCM-bulletin 1996, 396-416; K.

A RAMBULO , Strengthening the supervision on the International Covenant on Economic, Social and Cultural Rights’ , Antwerpen, Intersentia, 1999, 173 e.v.

74 Vijfde zitting, 1990, E/1991/23; zie ook: N.

S YBESMA -K NOL

, ‘Het internationaal verdrag inzake

Economische, Sociale en culturele rechten’, Jaarboek Mensenrechten 1994 , Antwerpen, Maklu,

1995, 79-83



73

ESH collective complaints

73. Under the European Social Charter, there is a clear trend towards more effective control mechanisms, thereby strengthening the legal nature of the treaty obligations.

After having added substantive rights to the Charter 75 , the role of the Committee of

Independent Experts is strengthened in the 1991 Amending protocol to the ESC 76 which is already implemented in practice, before the Protocol has entered into force.

The Protocol providing for a system of collective complaints (1995) opens the possibility for collective complaints by employers, trade unions and other relevant nongovernmental organisations 77 .

74. It is a system of collective, not individual, complaints: groups which are empowered to do so may apply to the supervisory bodies of the Charter. Organisations of social partners can use the procedure, as may other national or international nongovernmental organisations under certain conditions (inter alia: only complaints in respect of those matters regarding which they have been recognised as having particular competence), which is a noteworthy originality of this Protocol (Art. 1 and 2).

Violations of any of the rights contained in the Charter in any of the Contracting Parties may be alleged without domestic appeals procedures being exhausted, and even if the point of law has already been the subject of prior interpretation or recommendation 78 . It is also important to note that there is no victim requirement at all, nor a specific period after the final domestic remedy is exhausted to file in the complaint.

75. Complaints will be examined to establish admissibility and on their merits by the

Committee of Independent Experts. The procedure is contradictory, but primarily a written one. A hearing of the parties implicated may be organised, the other

Contracting Parties to the Charter and the social partners are informed of the case, and may make observations. The Committee of Independent Experts will then report to the

Committee of Ministers, which, if a violation of the Charter is found by the Committee of

Independent Experts, will issue a recommendation (or a resolution 79 ) to the party accused of violations. Where the Committee of Independent Expert’s report raises new questions, the Committee of Ministers may decide by a majority of two-thirds of the

Contracting Parties (and not member state of the council of Europe) to the Charter to consult the Governmental Committee.

76. The importance of the collective complaint procedure is capital. An intergovernmental organisation, like the Council of Europe, proves its courage by giving the social partners and non-governmental organisations an important role in these procedures. In legal terms, the introduction of the collective complaints procedure changes the supervising process of the application of the Charter thoroughly. The

Committee of Independent Experts has to prove that those rights are able to resolve a practical problem, to give a real solution to concrete problems, and that they escape the administrative supervision.

75 Additional protocol to the European Social Charter, 1988

76 Second protocol amending the European Social Charter; A.

H ARRIS

, ‘A fresh impetus for the

European Social Charter’, ICLQ 1992, 659

77 Inter alia: J.F.

A KANDJI -K OMBÉ , ‘La procédure de réclamation collective dans la charte sociale européenne – Chronique des décisions du comité européen des droits sociaux’, R.T.D.H.

2001,

1035 e.v.

78 The text of the admissibility decision of the first collective complaint uses the words in itself .

This implies that the Committee can argue in future complaints that the complaint adds nothing to the reporting system.

79 Resolution ChS (99) 4, 15 december 1999



74

77. The absence of requirements such as a victim requirement and the obligation to exhaust domestic remedies, etc. stresses that the aim of the collective complaints procedure is to ensure the general conformity of national law and practice with the

ESC. No issue of real (individual) remedies comes into play. Individual complaints are even inadmissible. In theory, may a group recognised under Article 1 not act as an agent for an individual or group of individuals. This system is designed to discover failures of implementation rather than to remedy violations of rights, unless there are some important differences with the state reports procedure: the complaints mechanism has the purpose to allow the Committee to make a legal assessment of the situation of a state in the light of the information supplied by the complaint and the adversarial procedure to which it gives rise 80 . This means that the aim of these procedures are certainly not to make the ESC justiciable (in the classic sense), but it does not mean that they are not enforceable or meaningless. The supervision carried out to follow up a collective complaint has – although there are still some important questions and caveats - an undeniable more legal character.

78. This Protocol is a very important step and a highlight for other conventions holding social, economic and cultural rights: the enforceability has become more reality, although it is regrettable that the European Court, or a social chamber in the Court, is not competent for those collective complaints. It should have stressed the interdependency and the universality.

CONCLUSION

79. The interpretation of the European Convention on Human Rights by the European

Court of Human Rights renews the ambit of the rights protected by the Convention. The difference between the civil and political rights on the one hand, and the social rights on the other become less important. The two types of human rights are at first human rights .

80. The Collective Complaints Procedure of the ESC provides for a limited contentious procedure, designed to encourage greater examination of the level of compliance by states with ESC rights. The nature of the complaints procedure leaves social rights in an other stage of justiciability as compared with civil and political rights, but they are not lawless anymore.

81. The enforceability and the credibility of social rights are still different visà-vis civil and political rights, but they become more and more reality step by step , day by day …

80 Admissibility decision collective complaint 1, § 10



75

Lobbying for an Optional Protocol

A perspective from an

International Human Rights Organisation

Michael Windfuhr, Executive Director, FIAN-International



[Draft / without adequate language check]

FIAN, the international human rights organisation, working for the right to adequate food, is an action oriented network, running around 50 interventions per year, in which

FIAN addresses the responsible actors for specific violations of the right to adequate food. While the focus of the work is public awareness raising for situation of violations of the right to food and mobilising people to send letter to the responsible actors, FIAN is also using the mechanisms of the UN-human rights system to challenge and deal with situations of violations of human rights. Unfortunately the human rights protection system concerning violations of economic, social and cultural rights is weak. Available is the state report system in the Committee on Economic, Social and Cultural Rights

(CESCR). FIAN is using the state reporting system on a regular base, alone in 2001 we made five parallel reports.

1 Nevertheless the state reporting system does not allow to tackle specific cases of violations of economic, social and cultural rights (ESC-Rights).

While individual and group complaints can be taken up in the area of civil and political rights by the Human Rights Committee a similar complaint mechanism is missing for

ESC-Rights.

2

FIAN started therefore some years after the beginning of its work with lobby work for an optional protocol to the International Covenant on Economic, Social and Cultural Rights

(ICESCR) allowing for individual and group complaints in situations of violations of the rights enshrined in the Covenant. In the following pages, we would like first to give a short overview on the history of the lobby-efforts for an optional protocol, done by FIAN mostly together with other international organisations. In a second step I will characterise, what were the most important resistance and arguments against an optional protocol, which we received in the course of the years. Following I am going to summarise the main arguments, why FIAN is lobbying for an Optional Protocol. In a fourth part I will discuss, what type of an optional protocol would be the best from a perspective of a human rights organisation. The text will close with proposals for next steps, that should be taken in the month to come.



Michael Windfuhr, Executive Director, FIAN-International - P.O.Box: 10 22 43, 69012

Heidelberg

Tel: +49-6221-6530050 / E-mail: windfuhr@fian.org

1 concerning violations of the right to adequate food in Bolivia, Colombia, Germany,

Honduras and Venezuela. Additionally FIAN produced a parallel report concerning implementation problems of Germany with its international obligations.

2 . The Human Rights Committee should be renamed into Committee on Civil and Political

Rights (CCP) , parallel to the name of the Committee on Economic, Social and Cultural Rights.

The current name reflects a historic bias in favour of only taking CP-Rights serious, while the indivisibility of all rights, which was recognized and strongly endorsed at the Vienna Human

Rights Conference in 1993, made it clear that Human Rights cover all five sets of rights, civil, cultural, economic, political and social rights.



76

I. BRIEF HISTORY OF LOBBYING FOR THE OPTIONAL PROTOCOL

The preparation of the optional protocol started in the CESCR, which discussed the issue first in detail in 1990. The adoption of such a protocol was recommended in the following year by Mr. Danilo Türk, the Special Rapporteur of the Sub-Commission on

Prevention of Discrimination and Protection of Minorities on the realization of economic, social and cultural rights, in his final report. 3 The CESCR prepared a background document for the Vienna Conference on Human Rights. While the official process was starting slowly at that time, the first NGO lobby activities did the same.

FIAN started first lobby activities in some of its national sections and during the Prep.-

Coms. for the Vienna Human Rights Conference. Right from the beginning the lobby efforts of international NGOs were done together in an alliance, which is ongoing up to today. Part of that alliance of international organisations have been HIC (Habitat

International Coaltion), ICJ (International Commission of Jurists), Terre des Hommes

France and FIAN. Other NGOs have taken up the issue as well in the meantime and the bases of civil society actors supporting the initiative is increasing rapidly.

In the Vienna Declaration and Programme of Action the World Conference on Human

Rights “encourage[d] the Commission on Human Rights, in cooperation with the

Committee on Economic, Social and Cultural Rights, to continue the examination of optional protocols to the International Covenant on Economic, Social and Cultural

Rights” (Part II, para. 75). This commitment was reiterated by the Commission on

Human Rights which, in paragraph 6 of its resolution 1994/20. The CESCR sent the first “Draft optional protocol to the International Covenant on Economic, Social and

Cultural Rights” in December 1996 to the Human Rights Commission, following a series of intensive discussion and debate in the CESCR.

4 Since 1997 the “Draft optional Protocol” is a pending case in the Human Rights Commission (HR-Com).

States have been asked to send in comments on the existing draft. The countries replied slowly and the process was therefore pending for years. The HR-Com. repeated for some years its request to send in comments. Only in 2001 the HR-Com. revitalised the process, in the way that she nominated an independent expert (Prof. H.

Kotrane) to review all the comments received and to prepare a report with options, to be presented at the HR-Com. session in 2002.

In 1992 FIAN started a first international supporting campaign under the trailer “No right to complain”. During this campaign FIAN sections and coordinations in several countries started to campaign publicly for the new individual complaint mechanism and to lobby national decision makers. Parallel the alliance of international NGOs who have started to lobby for the optional protocol was following closely each year the process in the HR-Com. The lead in this lobby work for years was with the ICJ and with HIC. FIAN contributed to this work. In 2001 ICJ and HIC organised with support of FIAN an expert seminar in Geneva beginning of February to prepare the ground for a more positive decision in the HR-Com. Representatives of 68 countries participated in that expert seminar, which was co-hosted by the CESCR in the Palais Wilson in Geneva. During the expert seminar the organisations tried to bring together experts with experiences with individual or collective complaint mechanisms to overcome many of the arguments against an individual complaint mechanism. During 2000 FIAN-International invested a

3 . The SubCommission was renamed inbetween and is called today „Subcommission on the Protection and Promotion of Human Rights“. The Doc-No. of the Türk report and para of the quote:

E/CN.4/Sub.2/1996/16, para 211.

4 . The discussion and debate is contained in the „Draft“-text sent by the CESCR to the

Human Rights Commission (E/CN.4/1997/105).



77 lot of lobby work to influence the process of the formulation of the European fundamental rights charter, which was under discussion in the EU-Convent. One of the core issues under discussion was, if ESC-Rights should go into the text of the planned fundamental rights charter or not. Many developing countries were following the debate in the EU and were telling that, if the EU would not accept the ESC-Rights as part of their charter, they would not be in favour of any strengthening of ESC-Rights at the level of the UN. Fortunately the EU included a bunch of ESC-Rights in the text of the

Charter, which was adopted at the Nizza-Summit of the EU in December 2000.

II. REASONS FOR FIAN-INTERNATIONAL TO WORK IN FAVOUR OF AN

OPTIONAL PROTOCOL

Four reasons are central for FIAN to continuously work in favour of an additional instrument to implement ESC-Rights.

1. The current implementation procedures for ESC-Rights are week. The only existing instrument, the state reporting procedure does not allow to present case related information and for an organisations like FIAN, whose work is entirely related to specific cases of violations of the right to adequate food, the existing procedure is not enough. The weakness of the implementation procedure is also an expression of the neglect and the misunderstandings with which ESC-Rights and ESC-Rights defenders are often confronted, when defending this set of human rights. One of these arguments is that ESC-rights are not precisely enough described to be applicable to a case based complaint procedure. FIAN believes that exactly the shortage of precise description can be overcome, if individual or collective cases can be dealt with in a complaint procedure. The current work of the CESCR in developing legal interpretations for each of the rights of the

Covenant in form of General Comments is also very helpful in this regard.

Recently the CESCR has drafted General Comments on the rights to education and health, which contain precise descriptions of the content of each of these right and of the respective state obligations linked to it.

2. In that sense the development of specific case law will help to overcome these lack of details in the current description of ESC-Rights and to make them fully justiciable. Case law must be developed at that national and international level.

The process at the national level has started in several countries and is increasingly fast. More and more new constitutions contain the right to adequate food and/or other ESC-Rights. The number of countries in which high or supreme courts have decided recently on the implementation of ESC-Rights is also increasing. For FIAN the work with cases is essential because only if specific cases are investigated, the variety and patterns of typical violations of the right to adequate food can be identified and addressed.

3. The most quoted reason to be in favour of such an optional protocol is the remedy it gives to victims. This is definitely the core interest to support the procedure. If victims – individually or collectively are facing violations of ESC-rights and do not get or do not have access to adequate remedy procedures at the national level it is good if they can complain at the international level and the case is going to be investigated

4. The campaign work has shown that the advocacy work for such a new international implementation instrument for ESC-rights was an excellent opportunity to initiate general debates about the importance of ESC-rights, to discuss with decision makers the relevance of ESC-rights and to challenge



78 existing concepts and misinterpretations vis à vis these rights. The specific campaign w ork with the slogan “no right to complain” has help in educational terms a lot to reach out and to support the new and adequate understanding on

ESC-rights amongst many scholars, activists and other multiplicators. FIAN has organised or talked about the optional protocols in seminars or workshops in more than 20 countries. FIAN has brought the issue to the knowledge of networks at the national and international level. Compared to the beginning of the 90 th today the theme of the optional protocol is getting step by step a more prominent place on the international human rights agenda.

III. RESISTANCE PERCEIVED BY FIAN IN THE YEARS OF WORK IN FAVOUR OF

THE OPTIONAL PROTOCOL

The resistance FIAN has perceived in many lobby events both at national and at international level is often similar by nature and can be structured according to the following six main arguments. Some arguments are used not surprisingly, because they build upon common discussions about the nature and scope of ESC-Rights, other arguments are rather unexpected but need careful answering:

1. Most arguments used against the Optional Protocol are the often used general arguments against the rights character of Economic, Social and Cultural Rights.

Among them are those who claim that ESC-rights are no rights at all but political aims, due to the fact that the future implementation is costly. Due to the limited number of resources available the rights can only be implemented step by step and cannot be guaranteed immediately as it would be possible with civil and political rights. This type of typical misconceptions against ESC-Rights are more and more overcome due to the increasing knowledge on what the state obligations are, which are linked to ESC-rights. The case work of international organisations like FIAN or HIC or many national human rights organisations, which has started to work with ESC-Rights has contributed a lot to a better understanding of violations of ESC-Rights. The principal duty-holder of all human rights is the state.

The state has to comply with its obligations deriving from the rights contained in the human rights Covenants. The full implementation of economic, social and cultural rights requires a state orienting its policies to comply with its human rights obligations. Human rights in general and ESC-Rights in particular oblige the state to respect, protect and fulfil these rights for all citizens. These three different levels of state obligations have been described by the Committee on ESC Rights

(CESCR) in several General Comments. In General Comments No. 12, 13, 14 on the right to adequate food, education and health the CESCR has developed recently a standard interpretation of the different rights of the Covenant in (1) describing the content of the respective right, including a core content and (2) in clarifying the specific state obligations following the three levels respect, protect and fulfil. This has led to greater interpretative certainty. Many misconceptions and misinterpretations of ESC-rights have been the result of the historically unequal treatment (missing clear definition, missing text book representation, missing references in case law etc.) of these rights compared to civil and political rights. A brief introduction of the definition and the state obligations concerning the right to adequate food as it is contained in General Comment No. 12 is presented in the following box:



79

Elements of a rights approach towards food and nutrition problems

In Article 11 (1) the states parties “recognise the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions”. The human right to adequate food is therefore a distinct part of the right to an adequate standard of living. Hence the accessibility of adequate food should not interfere with the enjoyment of other human rights and other components which are necessary for an adequate standard of living, such as shelter and education. From Article 11 (2) thus derives the fundamental right of everyone to be free from hunger. In both parts of the article international cooperation is especially mentioned.

The content of the rights to food and nutrition can be described briefly as follows: The realisation of the right to adequate food requires the availability of food in a sustainable way for everybody, free from adverse substances and culturally acceptable, in a quantity and quality which will satisfy the nutritional and dietary needs of every individual. The ultimate objective of the right to adequate food is to achieve nutritional well-being. Nutritional wellbeing is dependent on parallel measures in the fields of education, health and care. In this broader sense, the right to adequate food is to be understood as the right to adequate food and nutrition. Poverty is the major cause of food insecurity and missing access to adequate food and nutrition. Therefore, the availability of adequate food requires that every individual living alone or in community with other have access to productive resources, e.g. access to adequate land or natural resources like fish or the possibilities of gaining an income in ways consistent with human dignity.

The primary duty-holder under the right to adequate food is the state. States parties to the

Covenant of ESC-rights have (1) to respect the right to adequate food under all circumstances for everyone under their jurisdiction. That means that states have to respect physical and economic access to adequate food or to a resource base appropriate for its acquisition. The obligation to respect require also that the state must not take political or other measures destroying existing access by parts (specially vulnerable parts) of the populations to food or to a resource base like food producing resources.

Secondly, the States parties have to protect everyone under their jurisdiction from having their access to food undermined by a third party. The obligation to protect includes the state's responsibility to ensure that private entities or individuals, including transnational corporations over which they exercise jurisdiction, do not deprive individuals of their access to adequate food. This involves the protection of the freedom to feed oneself and the use of resources to regulate other actors, through, inter alia , the adoption of legislation and administrative measures that protect the access to adequate food. It means also to guarantee that the food available is healthy and culturally acceptable. Protection against nutritional disinformation also belongs to this level of obligation.

Finally, whenever an individual or group is unable to enjoy the right to adequate food, states have the obligation to fulfil that right. This requires first that the States parties identify vulnerable populations within their jurisdiction. Secondly the states have to try their utmost by using the maximum of their available resources to ensure the long-term ability of people to realise this right for themselves. States are moreover under the obligation to immediately start with the resources available to guarantee ESC-rights. All States Parties to the

Covenant on Economic, Social and Cultural Rights are under the obligation to take immediate steps to fulfil their obligations under the Covenant. The obligation to achieve progressively the full realisation of the right to adequate food (Art. 2, ICESCR) requires

State Parties to move as expeditiously as possible towards its realisation (Limburg

Principles). This obligation also applies to persons who are victims of natural or other disasters. Nevertheless, there will always be groups or individuals who cannot make use of possibilities to feed themselves. For this group the obligation to fulfil also means providing adequate food. Failure to perform any one of these three obligations constitutes a violation

…/…



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…/… of human rights. Economic, social and cultural rights must be guaranteed without discrimination as to national or social origin, property, race, gender, language, religion, political or other opinion.

Even in the case where a state faces severe resource constraints, whether caused by a process of economic adjustment, economic recession or other factors, vulnerable persons are entitled to be protected through social programs directed to facilitate their access to adequate food and fulfil their nutritional needs. All states have the duty to satisfy a minimum core obligation, which means that everyone is, as a minimum, free from hunger. Additionally governments should devise policies and programmes oriented to the full realisation of the right to adequate food. Priority should be given, as far as possible, to local and regional sources of food in planning food security policies, including under emergency conditions.

2. The second resistance against an optional protocol comes from countries who have made a sharp calculation of cost that could occur, if cases of violations would be dealt with internationally. Some countries are afraid for example that current restrictions on the full enjoyment of all ESC-rights they have in place concerning the treatment of refugees or asylum seekers could by typical cases for complaints under the planned Optional Protocol. In fact that are arguments, which are difficult to overcome, because it are exactly those type of cases, which must be dealt with to know exactly, what can and must be expected from states under the ICESCR and what not. Without case law, no real clarification can be achieved.

In some situations states have definitely to change their policies and it shall be the objective of the complaint mechanism to detect these situations.

3. Some surprising resistance is coming from “friends of the ILO-system”, may it be from trade unions or government personal responsible for the ILO procedures.

This group of person is afraid that a complaint system dealing with the right to work and rights at work would be in conflict or competitive with the resepective complaint procedures at the ILO. The argument is surprising because increasing the existing instruments to defend workers rights is very likely not to decrease but to increase the compliance with these rights. Moreover, there are several arguments, why an additional procedure would be helpful without challenging the importance and strength of the ILO procedures:

- the ILO procedures are much more detailed,

- the ILO standards vary partially from the norms of the ICESCR;

- the number of countries which have signed the ICESCR are in general higher than the number of state parties to most of the ILO conventions.

4. Several representatives from countries are afraid that an optional protocol would create new obligations for the state parties to the IESCR. Concerning this fear it has to be made clear (1) that the signing of the optional protocol will be optional and (2) that the optional protocol will not create now obligations, but a new implementation procedure for obligations that already exist under the ICESCR and to which state parties to the ICESCR are already bound.

5. Many state party observers are mentioning that the current status of formulation of state obligations under the ICESCR is in general still too unclear and that there is therefore a risk for countries to go forward with the optional protocol to the

ICESCR. This argument can be answered by (1) referring to the newly drafted general comments of the CESCR and (2) by showing that by avoiding a case law approach on the international level, it will not be possible to become much more precise than the CESCR did with the General Comments. The General Comments



81 are still so new, that they are basically unkown to many observers. It also should be made clear that the next step towards an optional protocol would be the creation of an open ended working group in the HR-Com to discuss the current draft from the CESCR. States have ample time and possibilities to discuss the existing draft and seek further clarification. Nothing is fixed so far, nor are states obliged to ratify for sign the protocol soon. The drafting history of the Optional

Protocol to CEDAW (Convention on the elimination of all forms of discriminations against women) shows that most of the arguments against an optional protocol were discussed in the working group of the Human Rights Commission and were overcome soon in the indebted debates in that working group.

6. An argument, which was quite often used, but which is quite surprisingly used is the argument that the CESCR, which shall be the Committee dealing with the complaints coming in, is (1) not of the best quality concerning the capacity of its members and (2) that the CESCR is missing the necessary administrative capacity and staff to deal with the number of cases that can be expected. The use of the argument is surprising because it are the states in the UN-system and in the

HR-Com that decide on the use of funds and that are responsible that currently the CESCR has a staff of few persons. It are also the states who nominate the members of the CESCR in the regional groupings. Perhaps it would be exactly the existance of such a complaint mechanism which would help that states would take the CÈSCR more seriously and that they would adequately equip and maintain the quality and the support structure for the CESCR.

IV. WHAT TYPE OF AN OPTIONAL PROTOCOL WOULD BE THE BEST?

Due to the fact that FIAN did a lot of lobby work in the CESCR in the period of drafting the proposal for an optional protocol FIAN is generally very supportive to the existing draft of the CESCR. Five remarks shall highlight our central positions regarding the contentissues of the “Draft Optional Protocol”, which have been asked by the organisers of this conference.

1. The draft should be supported in the provision that the optional protocol shall cover all rights enshrined in the ICESCR. Any system that would allow countries to pick and choose certain rights which would only be eligible for complaints, would only be a second best solution. To guarantee the indivisibility of all Human Rights also among the ESC-Rights, all rights should be covered by the Optional Protocol procedure. The argument that some of the rights are so vaguely spelled out in the

ICESCR that the do not justify to be included is generally not supported by FIAN.

From our analysis it would be possible to describe all rights sufficiently precise to enable courts and other complaint institutions to use them in their judgement, i.e. to make them justiciable.

During the drafting it was discussed for a certain period in the CESCR to exclude the Articles 6-8 of the ICESCR from the complaint procedure, due to the fact that the ILO has already complaint mechanism dealing with violation of most of the aspects of the right to work and the rights at work. This position was skipped later

(1) because the ILO conventions do not cover exactly the same rights as Article 6-

8. (2) The ICESCR does have more state parties and is more universal than most

ILO conventions. (3) To deal with human rights violations that involve violations of several rights of the covenant (e.g. right to health and aspects of rights at work as occupational health) it would be artificial to exclude per se the dealing with Article

6-8.



82

2. Concerning the debate, whether only the core content of each of the rights should be made accessible to a complaint procedure, FIAN´s position is also clear. (1)

The complaint procedure should deal with the full content of the rights enshrined in the Covenant and should deal with all levels of obligation, not only with the obligation to respect, which can be defined as a negative obligation. The problems with the right to adequate food may illustrate this. The majority of those who are hungry are people or groups of people who do not have access to productive resources. For them the most important violation of their right to adequate food are violations of the fulfilment bound obligations under the right to adequate food.

The number of landless in India alone is in conservative estimations said to be

170 million. Any solution to better their situation will require positive measures of the state. (2) Still the concept of the core content is not clarified enough to refer to it.

3. It was discussed, whether the complaint procedure shall only be open to direct victims or also to groups or individual acting on behalf of the victims. Based on our experiences FIAN is supporting the view of the CESCR that both individual and collective complaints should be accepted as well as complaints raised by groups that can show that they are acting on behalf of the victim groups. This provision, which is similarly included in the optional protocol to CEDAW and to the Covenant on Civil and Political Rights is essential important in the area of ESC-Rights, because victim groups of violations of ESC-Rights often belong to the most marginalized groups in the society, like bonded labourers or landless etc. They are often missing the capacity to launch a complaint by themselves. Doing this together with somebody acting on behalf of them is of utmost importance to make the complaint procedure accessible.

4. The question if state to state complaints would be an important element to include, is not an issue of high importance from our experiences. In all international complaint procedures concerning human rights standards state to state procedures have been used very rarely (basically only in the ILO –context).

Therefore such a mechanism will not be an important tool in the planned optional protocol. If this would be a strong point for resistance of states, civil society actors should not insist on such a provision.

5. It is very advisable that the complaint mechanism includes the option to allow interim remedies. Violations of ESC-Rights can effectively destroy the enjoyment of one of the ESC-Rights for persons or groups (like forced eviction could destroy the access to food producing resources, or the access to adequate housing) and it can be tool late to wait for a final decision in a complaint procedure, if the forced eviction has occured in the meantime. Then the final conclusion can come too late. Interim measures (as an order to stop forced evictions e.g.) could help to overcome this problem. Secondly it would be very innovative if responsibilities of other actors could be investigated inside a complaint procedure, because in some situations other actors are becoming increasingly responsible actors and can cause violations of certain ESC-Rights. If states are forced to adopt certain macroeconomic policies by structural adjustment programmes, it may lead to a situation, in which already weak states are forced to violate ESC-Rights. In that situation the IMF has a co-responsibility for the violation of ESC-rights. Therefore it would be good, if such responsibilities of other actors (including private actors like Transnational Corporations) could be addressed in the complaint meachnism.

Such an option would also be a helpful tool to increase the support of many developing countries for the optional protocol.



83

V. RESUMÉ

The long and difficult debates on the Optional Protocol to the ICESCR allowing individual and group complaints are partially so long and painful, because civil society support to such a protocol is still only slowly increasing. If we can create an atmosphere were the international civil society is strongly demanding such an instrument, as women rights groups did in the case of the optional protocol to CEDAW, the chances will increase to start the next step in elaborating the text of such an

Optional Protocol, in the form on a working group of the HR-Commission. The still limited support of NGOs and other civil society actors to such an initiative is due to the historic neglect to ESC-rights on all levels, from academia to activists. We are currently at the crossroad to getting more and more actors interested in the issue of ESC-Rights.

I am therefore optimistic that we can get more and more support also for the lobby work for an Optional Protocol. But still much has to be done. FIAN is willing to support and join any new or additional activities in favour of the Optional Protocol to the

ICESCR.



Leuven Statement on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

On 30 November 2001 an expert seminar on an Optional Protocol to the International

Covenant on Economic, Social and Cultural Rights was held in Leuven, Belgium. It was organised by the Institute for Human Rights of the Faculty of Law, Catholic University of Leuven, on the initiative of 11.11.11, Coalition of the Flemish North South

Movement. On that occasion, the following conclusions were adopted.

1. The participants to the seminar urge the United Nations Commission on Human

Rights to give high priority to the consideration of a draft Optional Protocol to the

International Covenant on Economic, Social and Cultural Rights. They encourage the effective start of the drafting process of that Optional Protocol at the earliest possible moment.

2. The participants endorse in principle the draft Optional Protocol as proposed by the

Committee on Economic, Social and Cultural Rights in 1996 1 . In particular, they express support for: a. the “violations” approach; b. the liberal rules of locus standi , allowing both individuals and groups to lodge a complaint; c. the inclusive or comprehensive approach as far as the range of rights covered is concerned; d. the possibility for the Committee to request States Parties to take interim measures; e. the possibility for the Committee to take into account information obtained from other sources than the author of the communication or the State concerned, provided that this information is transmitted to the parties concerned for comment; f. the possibility for the Committee to make the recommendations it considers appropriate.

3. On a number of specific issues, the participants would like to suggest amendments to the said draft Optional Protocol. These amendments take as a starting point the international consensus reached in the meantime on the occasion of the adoption in

1999 of the Optional Protocol to the Convention on the Elimination of Discrimination against Women 2 . The suggested amendments are the following: a. concerning the submission of a complaint by a third party, to add to Article 2 § 1 the following sentence: “Where a communication is submitted on behalf of individuals or groups of individuals, this shall be with their consent, unless the author can justify acting on their behalf without such consent.” 3 b. concerning the exhaustion of domestic remedies as an admissibility requirement, to insert in Article 3 § 3 (a), after the words “that all available domestic remedies have been exhausted”, the words: “unless the application of such remedies is unreasonably prolonged or unlikely to bring ef fective relief.” 4

1 See E/CN.4/1997/105.


3





85

86 c. concerning the possibility to request interim measures, to replace the text of Article

5 with the following:

“1. 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 a request that the State Party take such interim measures as may be necessary to avoid possible irreparable damage to the victim or victims of the alleged violation.

2. Where the Committee exercises its discretion under paragraph 1 of the present article, this does not imply a determination on the admissibility or on the merits of the communication.” 5 d. concerning the need to obtain the consent of the author of a complaint for disclosure of his or her identity, to add t o Article 6 § 1 the following sentence: “The

Committee shall disclose the identity of the author of the communication only when the author has consented to such disclosure”.

6 e. concerning the possibility of an inquiry procedure, to insert the Articles 9bis and 9ter, reading:

“Article 9bis

1. If the Committee receives reliable information indicating grave or systematic violations by a State Party of rights set forth in the Covenant, the Committee shall invite that State Party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned.

2. Taking into account any observations that may have been submitted by the

State Party concerned as well as any other reliable information available to it, the

Committee may designate one or more of its members to conduct an inquiry and to report urgently to the Committee. Where warranted and with the consent of the

State Party, the inquiry may include a visit to its territory.

3. After examining the findings of such an inquiry, the Committee shall transmit these findings to the State Party concerned together with any comments and recommendations.


5. Such an inquiry shall be conducted confidentially and the cooperation of the

State Party shall be sought at all stages of the proceedings.

Article 9ter

1. The Committee may invite the State Party concerned to include in its report under Article 16 of the Covenant details of any measures taken in response to an inquiry conducted under article 9bis of the present Protocol.

2. The Committee may, if necessary, after the end of the period of six months referred to in Article 9bis § 4, invite the State Party concerned to inform it of the measures taken in response to such an inquiry.” 7 f. concerning the prohibition of reservations to the Protocol, to include an Article

14bis, reading as follows:

“Article 14bis

No reservations to the present Protocol shall be permitted.” 8



7

See Art. 8-9 Optional Protocol to the Convention on the Elimination of Discrimination against Women.

8




87

Explanatory Report to the Leuven Statement

Wouter Vandenhole


This explanatory report is a reflection of the discussion about the text of the Leuven

Statement. A draft text, the socalled “Leuven Amendments” (see p. 35) served as a starting point for that discussion.

In what follows, each time a paragraph of the draft text of the “Leuven Amendments” is first printed in small. Secondly, the basic arguments of the discussion are mentioned. Finally, the final text as it appears in the Leuven Statement is printed in italics. The amended text in it is underlined.

1. INTRODUCTORY TEXT

On 30 November 2001 an expert seminar on an Optional Protocol to the International Covenant on

Economic, Social and Cultural Rights was held in Leuven, Belgium. It was organised by the Institute for Human Rights of the Faculty of Law, Catholic University of Leuven on the initiative of 11.11.11,

Coalition of the Flemish North South Movement. On that occasion, the following conclusions were adopted: [draft text]

There was no discussion on the introductory text. It remained unaltered and reads as follows:

On 30 November 2001 an expert seminar on an Optional Protocol to the International

Covenant on Economic, Social and Cultural Rights was held in Leuven, Belgium. It was organised by the Institute for Human Rights of the Faculty of Law, Catholic University of

Leuven, on the initiative of 11.11.11, Coalition of the Flemish North South Movement. On that occasion, the following conclusions were adopted. [final text]

2. APPEAL TO THE COMMISSION AND ENDORSEMENT OF THE DRAFT OPTIONAL

PROTOCOL

1. The participants to the seminar fully endorse the draft Optional Protocol as proposed, already in

1996, by the Committee on Economic, Social and Cultural Rights. [draft text]

Two concerns were raised during the discussion.

First of all, at present there is no negotiation process taking place at all on the wording of the Optional Protocol. Therefore, it is important to start the text with an appeal to the

Commission to encourage the start of negotiations and discussion on the OP. With this in mind, it is also thought to be important to defend the existing text (as proposed by the

ESCR-Committee), rather than to focus on possible amendments.

Secondly, from a logical point of view, there is a tension between this paragraph, in which it is said that the draft Optional Protocol is “fully endorsed”, and the following paragraphs, in which a number of amendments is suggested.

The first concern has necessitated the introduction of the following new first paragraph:

1. The participants to the seminar urge the United Nations Commission on Human Rights to give high priority to the consideration of a draft Optional Protocol to the International



88

Covenant on Economic, Social and Cultural Rights. They encourage the effective start of the drafting process of that Optional Protocol at the earliest possible moment. [final text]

The second concern has led to the following second paragraph:

2. The participants […] endorse in principle the draft Optional Protocol as proposed […] by the Committee on Economic, Social and Cultural Rights in 1996

1

. In particular, they express support for: a. the “violations” approach; b. the liberal rules of locus standi, allowing both individuals and groups to lodge a complaint; c. the inclusive or comprehensive approach as far as the range of rights covered is concerned; d. the possibility for the Committee to request States Parties to take interim measures; e. the possibility for the Committee to take into account information obtained from other sources than the author of the communication or the State concerned, provided that this information is transmitted to the parties concerned for comment; f. the possibility for the Committee to make the recommendations it considers appropriate. [final text]

3. PROPOSED AMENDMENTS IN LINE WITH THE OP-CEDAW

2. Applying the “standstill” principle to the international consensus reached in the meantime on the occasion of the adoption in 1999 of the Optional Protocol to the Convention on the Elimination of

Discrimination against Women 2 , the participants would like to suggest the following amendments:

[draft text]

In the discussi on, attention is drawn to the fact that “standstill” principle has a specific meaning in international law, which does not apply here. It is therefore suggested to change the wording.

The final text reads as follows:

3. On a number of specific issues, the participants would like to suggest […] amendments to the said draft Optional Protocol. These amendments take as a starting point the international consensus reached in the meantime on the occasion of the adoption in 1999 of the Optional Protocol to the Convention on the Elimination of Discrimination against

Women 3 . The suggested amendments are the following: [final text]

A general remark was made on the wording of the amendments. As the amendments are based on the international consensus reached in 1999 on the occasion of the adoption of the OP-CEDAW, it was suggested to copy the words and language used in that Optional

Protocol for the amendments to the OP-ICESCR being proposed in the present text. This suggestion was adopted.

1. Submission of a complaint by a third party a) if locus standi is accorded to individuals or groups acting on behalf of claimant(s), consent of the claimant(s) should be required, unless these individuals or groups could justify acting on their behalf without such consent 4 ( ad Art icle 2 § 1). [draft text]

1 See E/CN.4/1997/105.

2

Adopted by General Assembly resolution A/54/4 on 6 October 1999 and opened for signature on 10 December 1999; entered into force on 22 December 2000.


4




89

In order to bring the wording in line with the words used in the OP-CEDAW (see general remark above), the text was changed as follows: a) concerning the submission of a complaint by a third party, to add to Article 2 § 1 the followi ng sentence: “Where a communication is submitted on behalf of individuals or groups of individuals, this shall be with their consent, unless the author can justify acting on their behalf without such consent.” 5

[final text]

2. Exhaustion of domestic remedies b) a communication should be declared admissible even if all available domestic remedies have not been exhausted, if the application of such remedies was unreasonably prolonged or unlikely to bring effective relief 6 ( ad Article 3 § 3 (a)). [draft text]

In order to bring the wording in line with the words used in the OP-CEDAW (see general remark above), the text was changed as follows: b) concerning the exhaustion of domestic remedies as an admissibility requirement, to insert in Article 3 § 3 (a), after the words “that all available domestic remedies have been exhausted”, the words: “unless the application of such remedies is unreasonably prolonged or unlikely to bring effective relief.” 7 [final text]

3. Interim measures c) the Committee should have the possibility to request interim measures from a state without the explicit requirement of “a preliminary study [giving] rise to a reasonable apprehension […]“ 8 ( ad

Article 5). [draft text]

In order to bring the wording in line with the words used in the OP-CEDAW (see general remark above), the text was changed as follows: c) concerning the possibility to request interim measures, to replace the text of Article 5 with the following:

“1. 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 a request that the State Party take such interim measures as may be necessary to avoid possible irreparable damage to the victim or victims of the alleged violation.

2. Where the Committee exercises its discretion under paragraph 1 of the present article, this does not imply a determination on the admissibility or on the merits of the communication.” 9

[final text]

4. Consent of the author for disclosure of identity d) consent of claimants should be sought upon disclosure of their identity to the State Party concerned in a communication 10 ; where no such consent is obtained, the Committee should have the possibility to blue-pencil the name(s) of the claimant(s). ( ad A rticle 6 § 1). [draft text]

In order to bring the wording in line with the words used in the OP-CEDAW (see general remark above), the text was changed as follows:

5 See Art. 2 Optional Protocol to the Convention on the Elimination of Discrimination against Women.




9

See A rt. 5 § 1 Optional Protocol to the Convention on the Elimination of Discrimination against Women.




90 d) concerning the need to obtain the consent of the author of a complaint for disclosure of his or her identity, to add to Article 6 § 1 the following sentence: “The Committee shall disclose the identity of the author of the communication only when the author has consented to such disclosure”.

11

[final text]

5. Recommendations e) the Committee should have the power to make recommendations to States Parties regardless of the fact whether a violation has been found or not 12 ( ad Article 8 § 1). [draft text]

The participants to the seminar thought this amendment was not crucially important. In order to endorse as much as possible the draft OP, and to limit amendments to those that can be borrowed from the OP-CEDAW, the draft amendment was withdrawn.

6. Inquiry procedure f) an inquiry procedure should be provided for in case reliable information is received on grave or systematic violations of rights set forth in the Covenant 13 (new article). [draft text]

In order to bring the wording in line with the words used in the OP-CEDAW (see general remark above), the text was changed as follows: e) concerning the possibility of an inquiry procedure, to insert the Articles 9bis and

9ter, reading:

“Article 9bis

1. If the Committee receives reliable information indicating grave or systematic violations by a State Party of rights set forth in the Covenant, the Committee shall invite that State Party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned.

2. Taking into account any observations that may have been submitted by the State

Party concerned as well as any other reliable information available to it, the Committee may designate one or more of its members to conduct an inquiry and to report urgently to the Committee. Where warranted and with the consent of the State Party, the inquiry may include a visit to its territory.

3. After examining the findings of such an inquiry, the Committee shall transmit these findings to the State Party concerned together with any comments and recommendations.


5. Such an inquiry shall be conducted confidentially and the cooperation of the State

Party shall be sought at all stages of the proceedings.

Article 9ter

1. The Committee may invite the State Party concerned to include in its report under

Article 16 of the Covenant details of any measures taken in response to an inquiry conducted under article 9bis of the present Protocol.

2. The Committee may, if necessary, after the end of the period of six months referred to in Article 9bis § 4, invite the State Party concerned to inform it of the measures taken in response to such an inquiry.” 14

[final text]



13


14

See Art. 8-9 Optional Protocol to the Convention on the Elimination of Discrimination against Women.



91

7. Reservations g) reservations to the Protocol should be prohibited 15 (new article). [draft text]

In order to bring the wording in line with the words used in the OP-CEDAW (see general remark above), the text was changed as follows: f) concerning the prohibition of reservations to the Protocol, to include an Article 14bis, reading as follows:

“Article 14bis

No reservations to the present Protocol shall be permitted.

” 16

[final text]

4. OTHER AMENDMENTS PROPOSED

1. Inter-state complaint procedure

3. Furthermore, the participants also favour: a) the inclusion of an inter-state complaint procedure, giving the Committee the competence to receive and consider communications from a State Party claiming that another State Party is not fulfilling its obligations under the Covenant 17 (new article). [draft text]

Due to considerable opposition to this amendment at the expert seminar, and in order to limit amendments to those that can be borrowed from the OP-CEDAW, the draft amendment was withdrawn. It was agreed that the issue of international obligations of states would be dealt with in an addendum to the working paper (see below).

2. Range of rights covered b) the adoption of an inclusive or comprehensive approach as far as the range of rights covered is concerned, as proposed by the majority of the Committee in its draft Optional Protocol ( ad Article 2

§ 1). [draft text]

This draft amendment was replaced to the second paragraph (2 c).

3. Interim measures c) the possibility for the Committee to request interim measures from a State Party not only in order to avoid irreparable harm, but also in order to preserve the status quo ( ad Article 5). [draft text]

This amendment was generally thought not to be of crucial importance. In order to endorse as much as possible the draft OP, and to limit amendments to those that can be borrowed from the OP-CEDAW, the draft amendment was withdrawn.

4. Remedies d) a specification of the character of the remedies the Committee can recommend to the State

Party, in the sense that they can be both of an individual or of a general nature ( ad Article 8 § 1).

[draft text]

In order to endorse as much as possible the draft OP, and to limit amendments to those that can be borrowed from the OP-CEDAW, the draft amendment was withdrawn.

15


16


17

See Art. 41 International Covenant on Civil and Political Rights.



93

Addendum to the Working Paper on the International Obligations of States

Relating to Economic, Social and Cultural Rights

Wouter Vandenhole


1. From the discussion on the issue whether in addition to an individual complaint procedure and an inquiry procedure, an inter-state complaint procedure should be included in the OP-ICESCR, it appeared that there was strong opposition against an interstate complaint procedure. Arguments related mainly to practical experience from which it has appeared that the inter-state complaint procedure does not really work, as states prefer to address each other in political fora.

2. In the working paper, the international obligations of States under the ICESCR, such as obligations of international co-operation and the responsibility of other states than the domestic state for ESC rights, were examined. It was concluded that generally speaking, it is understood that no legally binding obligation exists for any state to provide any particular f orm of assistance (see §§ 31-34).

1

It was also mentioned in the paper that an inter-state complaint procedure had been suggested to be possibly useful to address the international dimensions of ESC rights (§§

35 and 62).

Finally, it was pointed out that much resistance was to be expected, as an inter-state procedure is generally considered politically too strong and too sensitive to abuse.

Moreover, it has hardly been used where it exists, as in the ICCPR. On the other hand, as an inter-state complaint is available under the ICCPR, it could be argued that it should equally be available for ESC rights, in order to stress the fundamental indivisibility and equality of all rights. And most fundamentally, an inter-state complaint procedure might allow to address the very crucial issues - from a developmental and human rights perspective - like international co-operation and the responsibility of other states than the domestic state for ESC rights.

3. It has to be recognised however that the potential of an inter-state procedure to raise the issue of the international obligations of states, is not very likely to materialize for the reasons stated above (states do not use it very often in practice, as it is thought to be politically too strong). In addition, the proposal to include an inter-state complaint procedure may render the acceptability of the OP-ICESCR all the more unlikely. For all these reasons, it is recommended here to 11.11.11 – even more explicitly than in the working paper (§ 63) – not to lobby for the inclusion of an inter-state complaint procedure in the OP-ICESCR.

1 Only the Netherlands Advisory Committee on Human Rights and Foreign Policy has taken the position that an obligation to provide international aid exists when another state is no longer capable of independently realising the absolute minimum norms of ESC-rights.

94

4. In an attempt to make some progress on the issue of the international obligations of states by other means, 11.11.11 could consider to submit a parallel report to the ESCR-

Committee specifically focused on that issue, when the next official Belgian report on ESC rights is due (2005).

Inspiration can be drawn from the parallel report submitted by three German nongovernmental organizations (Bread for the World

– Germany, Church Development

Service – EED – Germany and FIAN-International), which focused entirely on the international obligations and the compliance of Germany with them.

2

An interesting attempt is undertaken in that parallel report to clarify the character and content of international obligations by making use of the threefold obligation typology (“to respect, to protect and to fulfil”). The parallel report also recommends to the Committee to ask in its concluding observations from the government of Germany to add in its future state reports a specific chapter on international obligations, in which it assesses inter alia the influence of its own finance, aid, trade and agricultural policies on vulnerable people in other countries.

Probably as a result of this parallel report, the Committee encouraged Germany to introduce human rights impact assessments in its policymaking in order to ensure that due attention is given to the provisions of the ICESCR.

3

2 M. WINDFUHR, Parallel Report. Compliance of Germany with its International Obligaitons under the International Covenant for Economic, Social and Cultural Rights (ICESCR). Special focus: The right to adequate food , 21 p.

3 See E/C.12/1/Add. 68, Concluding Observations of the Committee on Economic, Social and

Cultural Rights: Germany , 24 September 2001, § 32.

ANNEX 1. LIST OF PARTICIPANTS

Steven BOUCKAERT

Institute for Immigration Law - Faculty of Law K.U.Leuven

Ineke BOEREFIJN

Netherlands Institute of Human Rights, Utrecht

Eva BREMS

Department of Public Law, University of Ghent

Jean-Claude COUVREUR

Ministry for Foreign Affairs

– Directorate Human Rights

Godelieve CRAENEN

Institute for Constitutional Law - Faculty of Law K.U.Leuven

Fons COOMANS

Centre for Human Rights, Maastricht University

Johan COTTENIE

11.11.11, Coalition of the Flemish North South Movement

Thomas CRAENEN

11.11.11, Coalition of the Flemish North South Movement

Marlies DESOMER

Institute for European Law - Faculty of Law K.U.Leuven

Wouter GEKIERE

Institute for Social Law - Faculty of Law K.U.Leuven

Paul LEMMENS

Institute for Human Rights - Faculty of Law K.U.Leuven

Gunter MAES

University of Antwerp

Frederik NAERT

Institute for International Law - Faculty of Law K.U.Leuven

Heidi PANKEN


Stephan PARMENTIER

Institute for Law and Society - Faculty of Law K.U.Leuven

Pietro SARDARO




95

96

Wouter VANDENHOLE


Jan VANHEUKELOM

Cabinet of the State Secretary for Development Cooperation

Nathalie VAN LEUVEN


Frederic VANNESTE


Annelies VERDOODT

Institute for Law and Society - Faculty of Law K.U.Leuven

Michael WINDFUHR

FIAN



97

Annex 2. Program

9.30: Welcome by the chair (Prof. P. Lemmens, Institute for Human Rights, K.U.Leuven)

9.35: The 1996 Draft Optional Protocol to the International Covenant on Economic,

Social and Cultural Rights (Dr. Wouter Vandenhole, Institute for Human Rights,

K.U.Leuven)

A SCHOLARLY PERSPECTIVE

10.15: The role of the Committee on Economic, Social and Cultural Rights in strengthening supervision of the ICESCR (Dr. Fons Coomans, Centre for Human

Rights, Maastricht University)

10.45: Justiciability of economic and social rights (Gunter Maes, University of Antwerp)

11.15: Coffee break

AN NGO PERSPECTIVE

11.30: Lobbying for an Optional Protocol: a German perspective (Michael Windführ, FIAN)

12.05: Discussion

13.00: Closing by Mr. Jan Vanheukelom (Cabinet of the State Secretary for International

Co-operation)

13.30: Sandwich lunch



i. the international covenant on economic, social and

AN OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT

ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Expert Seminar organised by the Institute for Human Rights,

Catholic University of Leuven

Leuven, Belgium

30 November 2001

AN OPTIONAL PROTOCOL

TO THE INTERNATIONAL COVENANT

ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Expert Seminar organised by the Institute for Human Rights,

Catholic University of Leuven

Leuven, Belgium

30 November 2001

Table of Contents

Introduction

Working Paper

An Optional Protocol to the International Covenant on

Economic, Social and Cultural Rights

Comments on the 1996 draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

The Role of the UN Committee on Economic, Social and Cultural Rights in Strengthening Implementation and Supervision of the International Covenant on

Economic, Social and Cultural Rights

Justiciability of Social and Economic Rights

Lobbying for an Optional Protocol

A perspective from an

International Human Rights Organisation

Leuven Statement on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

Explanatory Report to the Leuven Statement

Addendum to the Working Paper on the International Obligations of States

Relating to Economic, Social and Cultural Rights

Annex 2. Program

Related documents

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Support

i. the international covenant on economic, social and

AN OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT

ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Expert Seminar organised by the Institute for Human Rights,

Catholic University of Leuven

Leuven, Belgium

30 November 2001

AN OPTIONAL PROTOCOL

TO THE INTERNATIONAL COVENANT

ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Expert Seminar organised by the Institute for Human Rights,

Catholic University of Leuven

Leuven, Belgium

30 November 2001

Table of Contents

Introduction

Working Paper

An Optional Protocol to the International Covenant on

Economic, Social and Cultural Rights

Comments on the 1996 draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

The Role of the UN Committee on Economic, Social and Cultural Rights in Strengthening Implementation and Supervision of the International Covenant on

Economic, Social and Cultural Rights

Justiciability of Social and Economic Rights

Lobbying for an Optional Protocol

A perspective from an

International Human Rights Organisation

Leuven Statement on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

Explanatory Report to the Leuven Statement

Addendum to the Working Paper on the International Obligations of States

Relating to Economic, Social and Cultural Rights

Annex 2. Program

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