op-icescr – the Optional Protocol of the International Convent of Economic, Social and Cultural Rights

The latest action plans of various countries can be found on the website http://www.unhchr.ch/html/menu2/plan_action

Division in the UN over a complaints procedure for socio-economic rights: New Zealand’s reluctance to take sides. 

But first the Conclusion, as this is important to go on:

Conclusion: It seems that many of the differences at the OEWG stem from the failure of a number of countries, particularly from the West, to fully recognise that ESC rights have the same status as civil and political rights. If the massive violations of ESC rights which are occurring worldwide are to be effectively dealt with, there needs to be a revolution in consciousness, particularly in the West. Otherwise, global inequalities in wealth and living standards are likely to widen with serious consequences for everyone. New Zealand could play a pivotal role in advocating for the adoption of the Optional Protocol. Its adoption, which is gaining momentum at the UN, can be seen as an attempt to build bridges between rich and poor (and the powerful and the powerless) both within and between countries.

And now the long article:

Anthony Ravlich, Chairperson of the Human Rights Council Inc., Auckland City /New Zealand, wirtes in his Newsletter on May 16, 2005: At the recent United Nations (UN) open-ended working group meeting (OEWG), New Zealand maintained its distance from the American camp, which is opposed to the adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (the Optional Protocol) providing for a complaints procedure for violations of economic, social and cultural rights (ESC rights). It is envisaged that the UN Committee on Economic, Social and Cultural Rights (CESCR) will have the competence to receive and determine these complaints once domestic remedies have been exhausted.

At least 76 countries attended the first day of the second session of the OEWG, which met from 10-21 January 2005 in Geneva. The OEWG was mandated by the UN Commission on Human Rights (HRC) “to consider options regarding the elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights” (ICESCR). The report of the OEWG (was) presented at the sixty-first session of the HRC from 4 March-22 April 2005. The mandate of the OEWG is expected to be renegotiated at a session of the HRC in 2006. New Zealand ratified both the International Covenant on Civil and Political Rights (ICCPR) and the ICESCR in 1978 and acceded to the Optional Protocol to the ICCPR rights in 1989.

The ideological clash between rich and poor countries

The main opposition to the Optional Protocol came primarily from developed countries-the United States (US), Australia, the United Kingdom (UK), Canada and Japan. India, Egypt and Saudi Arabia also opposed it. Countries from the poorer regions of South America, the Caribbean and Africa were the most supportive of the Optional Protocol.

According to the NGO Coalition for the Optional Protocol (NGO Coalition), Canada, the US, Japan, the UK and Australia took the position at the OEWG that the Optional Protocol should not be adopted because ESC rights were different from civil and political rights and not suitable for judicial enforcement. In contrast, many of the poorer countries considered civil and political rights and ESC rights as being of equal status. This position has always been held by the UN, at least in terms of rhetoric (cf. the Vienna Declaration, 1993).

Jillian Dempster of New Zealand’s permanent mission at the UN said, in response to questions from the Human Rights Council Inc., that New Zealand “firmly believed” in the equal status of both sets of rights but did not wish to be seen to be aligned with either camp. As a result, New Zealand said little at the OEWG. Dempster stated:

We were in listening mode as our position is still not firm in one direction or the other-to assert a firm position could have been misconstrued that we had made up our minds and could be counted in one camp or the other, either for or against.

This seemingly ideological split between the two camps (i.e. developed and developing countries) is reminiscent of, although not nearly as extreme as, the debate at the time the ICCPR and the ICESCR were being adopted. That debate was influenced largely by the Cold War-the West championed civil and political rights (which favour the middle class, professional sector) and the East European communist countries promoted ESC rights (which, in contrast, favour the working class and the most disadvantaged).

Since then, ESC rights have been marginalised and enjoy lesser protection than civil and political rights. Mary Robinson, the former UN High Commissioner for Human Rights, for example, remarked at the fiftieth anniversary of the Universal Declaration of Human Rights, 10th December 1998, that:

We must be honest and recognise that there has been an imbalance in the promotion at the international level of ESC rights and the right to development, on one hand, and of civil and political rights, on the other.

She added that this imbalance was not only evident at the international level but also at the regional and national levels.

In recent years, because of the growing global concern for social justice, attention has been refocused on ESC rights. These rights would provide people with a belief system, with international credibility, which would enable them to fight for social justice in a world where, according to J Kelsey (2000), “free market policies have increased inequality within and between countries and in the case of the poorer countries, have condemned millions to entrenched, life threatening poverty”.

On 18 January 2005, Phil Goff, the New Zealand Minister of Foreign Affairs and Trade, stated that New Zealand takes a cautious approach to treaties but even when they are ‘optional’, it always tries to become a party to all international human rights treaties. He said:

Given the complex nature of the issues concerned, and the clear lack of international consensus on the way forward, we consider that further discussion is warranted before any decision is taken to begin negotiations on a new instrument [consequently] New Zealand opposes immediate drafting of an Optional Protocol.

At last years’ working group meeting, New Zealand was described as a “light” opposition by Maria Graterol, a representative of the International Women’s Rights Action Watch Asia Pacific, because it was against drafting of the Optional Protocol immediately but happy to continue with discussions.

The dangers of a piecemal (a la carte) approach for the disadvantaged

A concerning development at the OEWG was the suggestion to open discussion on whether states could be allowed to choose to be bound by certain rights or obligations in the Covenant. This is what in the debates has been referred to as the ‘a la carte’ (or piecemeal) approach as opposed to a comprehensive approach. In my view, such a choice would represent a failure to recognise the interdependence of these human rights. It would allow states to misrepresent the Covenant to their people, as well as the possibility of elite interests being favoured over the interests of the most disadvantaged.

By comparison, a comprehensive approach would require that states treat all human rights and layers of obligations equally and implement them accordingly. According to the NGO Coalition, all the experts in the first two days of the working group supported the comprehensive approach.

A piecemal approach received particular support from the European Union countries who pointed to the European Social Charter as a useful precedent. According to the NGO Coalition, this approach is being suggested by a number of delegations as a means of finding consensus between the opposing camps.

Bernard Robertson provides another example of an a la carte approach in his 1997 study for the New Zealand Business Round Table, entitled Economic, social and cultural rights-Time for a reappraisal. Robertson advocates the removal of the duty of government to fulfil, which would have ensured employment, fair wages, health, etc. He states that many rights enumerated in the ICESCR can only be achieved at the expense of restricting corresponding individual liberties (civil and political rights).

However, while dismissing the duty to fulfil, Robertson agrees that a state could be enjoined to comply with the obligation to respect and protect (e.g. non-discrimination in employment, etc.) because these are applied fairly whereas the duty to fulfil requires targeting certain groups, for example, the most disadvantaged. He considers that government should respect individual choice. Therefore, he views the minimum wage rates as discouraging individuals and business from making work available.

Likewise, he considers that the government should refrain from interfering in working relations irrespective of any considerable disparity in the power relationship. Furthermore, he maintains that:

The right to continuous improvement in living conditions presumably means that the government should not take any decision deliberately aimed at reducing the living conditions of any group. This would entail not levying discriminatory taxation on any group even if the aim were redistributional, since the rich are as entitled to this right as anyone else.

This approach seems only likely to provide protection to those who are in a position to enjoy ESC rights and may make the situation much worse for the most disadvantaged. Robertson fails to see that fulfilling ESC rights would ensure that people have sufficient choices. His approach is an extreme example of how ESC rights can be manipulated to serve elite interests rather than the interests of those who are disadvantaged, oppressed and exploited.

The NGO Coalition holds that the state’s duties to respect, protect and fulfil economic, social and cultural rights has received widespread acceptance in the international human rights arena. They also reported that the majority of delegates agreed that ESC rights had core obligations that deal with extreme situations such as starvation, poor heath care, homelessness etc.

Neither the piecemal approach proposed in the OEWG nor that of Robertson would serve the interests of vulnerable groups. The piecemeal approach would enable governments to cut back on welfare for a considerable proportion of the most disadvantaged. The anti-welfare rhetoric of such leaders as President Bush of the US, and Don Brash, leader of New Zealand’s major opposition party, the National Party, demonstrates that this is certainly possible.

Other contentious issues

International co-operation was also a contentious issue at the OEWG. According to the NGO Coalition, developing countries argued that the Optional Protocol must include provisions on international co-operation while ‘Western’ states argued that that international co-operation must not be amenable to adjudication.

There were differences between states on whether international co-operation [Article 2(1), ICESCR] constituted a moral or a legal obligation. However, it seems to me that international co-operation is key to helping poorer countries to realise ESC rights and reduce the existing inequalities alluded to above.

There was also a concern among some states regarding the justiciability of ESC rights. Some countries wish to prioritise civil and political rights over ESC rights, thus maintaining the conventional position that the former are more important than the latter.

According to the NGO Coalition, the obligation to fulfil was regarded by some states as not justiciable. However, some countries (Norway, Finland and South Africa) have ESC rights as justiciable norms in their constitutions. In the case of South Africa, courts are actively engaged in adjudicating on these rights, thus affirming their judicial competence over such cases.

Other states objected to ESC rights, arguing that, unlike civil and political rights, there is a lack of international jurisprudence on them. However, in my view, while awaiting the development of this jurisprudence the suggestion made by Paul Hunt that courts make use of negative judicial review could be applied in the interim. Hunt states:

In April 1991, the New Zealand government introduced cuts in welfare. According to the Human Rights Commission, the reduced rates brought some beneficiaries below the Treasury’s own ‘income adequacy’ level. If New Zealand law provided that individuals have a right to an adequate standard of living, why could a court not declare that the cuts were unlawful because they violate this right?

Negative judicial review could guard against further welfare cuts.

Following New Zealand’s periodic report to the CESCR in May 2003, the CESCR expressed concern over the non-recognition of ESC rights as justiciable rights. To my knowledge, this is still New Zealand’s position and there are no ESC rights included in New Zealand law.

Anthony Ravlich is Chairperson of the Human Rights Council Inc., Auckland, New Zealand.

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