day 4 of the op-icescr working group

Thanks to Aaron (Rehabilitation International) and Vince (Nova Scotia Legal Aid/ESCR-Net) for preparing this report.

Programme for the day: The first part of the morning was taken up with States Parties posing questions to Professor Riedel. These touched on the legal status of the Committee, the ability of complaints under an OP to deal with the “cascading effect of colonialism in the developing world”.

Russia asked Professor Riedel as to his views on an a la carte approach, which, it should be noted, he took a dim view of. Specifically, his view was that it would have the effect of diminishing the value of the rights excluded by States. Other States contunied question how the Committee acting under an OP would evaluate whether a State had expended the maximum of its available resources.

Canada asked what would be the extent of its international obligation to provide assistance to developing countries. In his answers, Professor Riedel sought to assure States that the status of the Committee’s views after a complaint would simply have persuasive, rather than binding, value.

Jane Connors (Office of the High Commissioner for Human Rights) briefed the Working Group with respect to the negotiations leading to the adoption of the OP to CEDAW, and how this OP is now working in practice. She noted that some of the concerns raised by States Parties mirrored concerns raised respecting the proposed OP to the ICESCR (e.g. justiciability, who should have standing to bring a complaint, duplication of procedures).

Themes from government dialogue session
States continue to express concern. Canada, for example, remained skeptical that economic, social and cultural rights are justiciable (arguing that the presence of a few cases internationally does not demonstrate justiciability).

In her summary of the day, the Chair noted the consensus that the adoption of an OP would not per se expand the scopes of obligations previously undertaken by States.

NGO activities
NGOs actively intervened today. The Center for Economic and Social Rights intervened on the issue of the alleged imprecision of the rights in the ICESCR and highlighted the Canadian experience under very broadly worded constitutional provisions. Specifically, the Canadian Supreme Court has had no problem distinguishing between claims that properly fell either inside or outside of the scope of the right to “life, liberty and security of the person”.

As to how the Committee would be able to evaluate whether a state had expended the maximum of its available resources, COHRE stated that such an evaluation would be akin to that undertaken in a discrimination analysis. For example, if a public building were not accessible to persons with physical disabilities, after establishing a right denial, a monitoring body would look at whether the government had a duty to take into account the person’s need short of undue hardship – which necessarily involves a fiscal analysis.

NGOs continue to meet with delegates with the goal of having supportive States express the need for the Working Group to move forward towards a drafting stage. Our efforts have been fruitful, as supportive interventions were made on Thursday by several States, particularly by European and Latin American States.

Action Alerts for NGOs. No action is needed at this time.

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