day 1 of the op-icescr working group

By Edwin Berry, Legal Officer, International Commission of Jurists. As a general comment, I would say that Day One of the Working Group was relatively well attended and, to the best of my knowledge, the United States was absent from the debate.

The following are the opening statements of States and IGO’s. Please read through the review of this session and see whether the information can further assist in your national efforts.

The opening statements of states:

Algeria seemed to infer that it supported the drafting of an Optional Protocol and asserted that one cannot talk about rights unless they are justiciable. Austria supported the Optional Protocol as this instrument would assist with the further clarification of ICESCR rights.

Canada questioned what the definition of ESC rights is and advised that it was looking forward to speaking about ICESCR article 2, how a violation of article 2 would be assessed and what the threshold for such violations would be. Canada also advised that ICESCR rights were phrased in broad and imprecise terms and, while acknowledging that some economic, social and cultural rights are justiciable, Canada advised that questions remained in this area.

Finally, Canada raised concerns with regard to complementarity and the finite resources of the UN, (the cost of maintaining an Optional Protocol complaint’s mechanism itself).

Chile expressed support for the process currently taking place.

China affirmed the equal importance of civil, political, economic, social and cultural rights and attempted to link the Optional Protocol issue to the right to development. China questioned whether all ICESCR rights were equally justiciable. China did not outright say that they were firmly against the Optional Protocol however, this was the general message conveyed. Congo, on behalf of the African Group, advised that it was the responsibility of the working group to draft the Optional Protocol, however, serious issues had to be discussed, (I’m not exactly sure that the spokesperson of the African Group actually indicated that the African Group actually supported the drafting of an Optional Protocol.

Croatia was keen to throw its support behind the Optional Protocol process and called for the elaboration of this instrument as soon as possible.

Finland supported the creation of the working group and the drafting an Optional Protocol. For an introductory speech, this presentation demonstrated Finland’s full commitment towards the Optional Protocol process. Finland went on to list the numerous benefits of an Optional Protocol and utilised the exact wording contained in the our coalition’s ‘benefits’ fact sheet.

Finland took the floor a second time to refute some of the points made by States that positioned themselves against the Optional Protocol.

Greece advised of growing economic, social and cultural rights on the national level and advised of its concerns with regard to complementarity and justiciability.

Haiti advised that the development of an Optional Protocol would be a good thing, however, resource constraints are an important matter that must be taken seriously.

India voiced availability of resources concerns and that the realisation of economic, social and cultural rights is highly related to debates concerning development. Further, India very diplomatically advised that we should get an Optional Protocol when hell freezes over, however, the speaker was so extremely eloquent that I wanted to believe him. India outright advised that we should only create an Optional Protocol when the global community further progresses along the development spectrum.

Ireland, on behalf of the European Union offered little more than to say that this regional grouping wants to strengthen the realisation of economic, social and cultural rights. It was quite obvious that the EU continues to be deadlocked on the Optional Protocol issue as, in the end, the statement neither provided support for nor was negative towards the development/drafting of an Optional Protocol.

Japan expressed that it would be difficult to adjudicate over ICESCR complaints given the variable development levels of States. Japan also seemed to question whether, if an Optional Protocol became a reality, the CESCR would possess enough knowledge of the domestic situations/circumstances of States over which they could adjudicate over.

Japan didn’t outright oppose the Optional Protocol, however, this position was inferred.

Mexico advised that an Optional Protocol was a desirable tool for the further realisation of economic, social and cultural rights and more importantly, the creation of an Optional Protocol was feasible as the instrument would not introduce new ICESCR obligations, it would merely assist States in the realisation of obligations already assumed under the Covenant.

Norway was neutrally optimistic concerning the process of discussion, however, it did not openly support the development of an Optional Protocol.

Poland advised that the working group should consider options with regard to the elaboration of an Optional Protocol and that the elaboration of this instrument is not a foregone conclusion. Poland also advised of its doubts with regard to an Optional Protocol as ICESCR rights are vaguely phrased and are thus not justiciable. Further, deep concerns were shared about the impact of an Optional Protocol on the distribution of finite State resources.

Portugal advised of its deep commitment towards the elaboration of an Optional Protocol.

The Republic of Korea mentioned its general view that clear criteria should establish what constitutes a violation under the Covenant, (again the vagueness issue). Also mentioned was that a new United Nations monitoring mechanism would be expensive to maintain. In general, the Republic of Korea was negative but not so so negative towards the idea of an Optional Protocol.

Saudi Arabia advised that while States parties to the ICESCR had obligations to give effect to Covenant rights: (1) ICESCR rights were too vague to be adjudicated by an Optional Protocol complaints mechanism; (2) An Optional Protocol complaints mechanism is incompatible with the differing levels of development for nations around the world; and (3) The CESCR does not have the legal status to adjudicate over complaints.

Saudi Arabia took the floor a second time to request that the working group should consider and clarify the legal status of the CESCR as Saudi Arabia may have been wrong on this issue, (NGOs slammed Saudi Arabia on this point).

South Africa directly supported the drafting of an Optional Protocol and advised of the domestic incorporation of the ICESCR into the constitution of South Africa. South Africa did however note that resource constrains were important and seemed to back off a bit on its full and unequivocal support for this proposed international instrument.

Switzerland wants to apply a selective approach towards the rights in the Covenant that could be the subject of an Optional Protocol. Advised that some ICESCR rights were, in fact, perceived as social goals in Switzerland that are not justiciable. The Swiss Supreme Court advised that ICESCR articles 6 through 15 did not confer justiciable rights with the exceptions of ICESCR article 8(1) and Covenant provisions concerning retrogressive measures.

Note that the GRULAC has yet to form its position on the Optional Protocol.

Note that Chile, while traditionally supportive of the Optional Protocol, has yet to receive instructions from the Capital.

The opening statements of IGOs

UNESCO supported the development of an Optional Protocol and made submissions with regard to complementarity. The UNESCO representative then described the UNESCO communication procedure that adjudicates over UNESCO’s specific field of competence and demonstrated the beneficial impact that an international economic, social and cultural rights adjudicative mechanism can have with regard to the further realisation of these rights.

The ILO advised of a substantial overlap between the proposed ICESCR complaints procedure and the sphere of action of ILO complaints procedures that adjudicate over rights associated with the right to labour, however, such overlaps are not 100 percent. The ILO representative did not mention whether this organisation was for or against an Optional Protocol to the ICESCR.

The WHO focussed on its own work concerning the right to health and, in general, supported the development of an Optional Protocol.

NGOs – Various NGOs made opening statements that offered support to the development/drafting of an Optional Protocol.

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