day 2 of the op-icescr working group

Thanks to Wilma (FIAN) for preparing this report.

Programme of the session: Special Rapporteurs on the Right to Housing, Miloon Kothari, and on the Right to Health, Paul Hunt, were present in the morning and the afternoon.  

They did a brief presentation in favour of the elaboration of an OP in the morning; Hunt talked mainly about Justiciability and the Nature and Scope of states obligations, Kothari about experiences of his missions and the increasing negative development of judicial decisions. Then they entered into an open dialogue with state delegates.

Main issues of the day:
1) nature/ scope of obligations
2) lack of clarity of ESCR
3) Justiciability on international level
Other issues:
- cost of implementation of ESCR – are ESCR more expensive than other rights?
- Will interpretation and activities of the CESCR give rise to an illegal revision of the ICESCR?
- Legal standing of the CESCR (many states challenged the Committees mandate)
- Would developing countries have to reach the same level of realization of the ESCR as developed countries?
- Would positive discrimination violate the Covenant?
- Nature of remedies
- Selective approach to which rights would be included “a la carte” versus all rights being included
- Conflicting role for Committee: examining reports and adjudicating complaints at the same time
- Perception that adjudication of ESCR challenges the authority of parliament to make policy decisions
- Conflicts between International Committee and other organisations like ILO, UNESCO etc.
- Minimum threshold for violations

NGO activities:
- We had a morning meeting with the chair, Katarina Albuquerque; exchange of views. She was kind of optimistic, and provided some useful advice on the activities of the NGOS. In particular she pointed to the importance of getting more supportive countries into the room and for those in favour to speak up – see action alert at end of bulletin
- At the conclusion of the Monday session the Chair articulated nine key questions that had been raised. We have prepared a responses paper.
- We will hold a lunchtime forum on Justiciability on Thursday, 26/02
- NGOs will meet with GRULAC and African states before the end of the week
- We are targeting states through one-on-one lobbying and also trying to increase the number of supportive delegations in the room

Urgent Actions for NGOs: The activities of the Open-Ended Working Group are being hampered by the lack of active participation by governments supportive of the OP to ICESCR.

In particular, the participation of African and GRULAC countries is needed. Mexico and Brasil already said that they are supportive. It is really important to get Argentina in the room, though.
For the most part, GRULAC governments are supportive of the OP to ICESCR, but they are not able to participate because they have not received instructions The Inter-American Platform for Human Rights is contacting GRULAC NGOs independently, however, NGOs in this region are asked to contact their Foreign Affairs Ministries and encourage them to send instructions on the OP to ICESCR to Geneva Missions.

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