day 3 of the op-icescr working group

Programme for the day : Experts from different treaty bodies addressed the delegates. Professor Martin Scheinin examined the work of the Human Rights Committee and the First Optional Protocol to the ICCPR, and M. Régis de Gouttes examined the work of the Committee on the Elimination of Racial Discrimination in receiving communications.  

Professor Eibe Riedel examined the work of the Committee on Economic, Social and Cultural Rights. Professor Riedel focused his presentation on five key arguments related to the content of economic, social and cultural rights, while Professor Scheinin and M. de Gouttes focused greater attention on procedural considerations in receiving communications, highlighting shortcomings as well as identifying the benefits of a communications procedure.

In particular, M. de Gouttes noted that a communications procedure enables victims to raise their concerns, the goodwill of States’ intention to fully implement the Convention to be tested and the Committee to develop jurisprudence. Following the presentation, delegates engaged in a dialogue with the experts, the themes of which are reported below.

Themes from government dialogue session: A full day of questions followed the presentations, and questions to Dr Riedel have carried over into the first session of Wednesday. In general four themes are emerging:
• questions have become more technical;
• questions are following two paths – conceptual concerns relating to economic, social and cultural rights; and procedural concerns relating to the operation of an optional protocol;
• slowly, but surely, supportive states are “coming on-line” and speaking out in favour of the OP, for example, South Africa, Chile and Mexico all made very strong, positive interventions;
• It is also important to note that opposition continues to be expressed, with the UK speaking for the first time in the session, and India, Switzerland and Poland continuing to express concerns of both a substantive and procedural nature.

With respect to conceptual concerns, delegates continue to challenge the justiciability of economic, social and cultural rights, at international level. Importantly, some gains appear to have been made in acknowledging the justiciability of ESCR within domestic jurisprudence. Nonetheless, speaking for the first time, the UK argued that the obligation of progressive realisation is “not susceptible to individual communications”.

With respect to procedural concerns, an increasing number of delegations are discussing an “a la carte” approach, where an OP would not apply to all the rights or not all levels of obligation (respect, protect, fulfil). Moreover, governments are arguing that standing should be restricted solely to individuals. And finally, arguments are being put that an individual communicat ions procedure is not the most effective way to secure the realisation of economic, social and cultural rights.

In terms of government participation, the majority of governments in the room are European. Latin American, Caribbean, Asian and African governments are sorely under-represented. For the most part, Asian governments in the room are speaking against (India and Japan).

NGO activities
Lobbying has focused on four areas:
• increasing the number of friendly governments in the room and encouraging them to speak up;
• meeting with individual delegations, particularly those who oppose the OP or who are ambivalent towards it, to challenge their views and to provide them with an opportunity to speak with NGO experts in the area;
• lobbying for the on-going mandate of the Open-Ended Working Group;
• working with regional blocks – meetings are planned with GRULAC and African blocks.

Action Alerts for NGOs: Beyond ongoing work to support participation of GRULAC in the meeting (see action alert from Tuesday), no pressing issues have arisen. We anticipate that work will be required with African states, and that a generalised appeal will be required early next week to ensure the extension of the mandate of the Open-Ended Working Group. UK NGOs could write to MFAT to challenge the assertion that progressive realisation is “not susceptible to individual communications”.

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