day 5 of the op-icescr working group

Programme for the day: The discussion today focused on the question of justiciability. At the outset, the Chair asked delegates to consider whether economic, social and cultural rights were justiciable at the domestic, regional or international level.

Themes from the interactive dialogue session: A number of significant themes continued to be highlighted today:
• Delegates continued to debate whether economic, social and cultural rights are justiciable. Greater agreement emerged on the justiciability of economic, social and cultural rights at national levels;
• Ongoing assertions that economic, social and cultural rights are vague and imprecise. These views continue to be countered by delegations supportive of the OP process that if one is to argue that economic, social and cultural rights are vague and imprecise then one must also argue that civil and political rights are vague and imprecise. Moreover, supportive governments assert that through an OP greater clarity will be given to the precise nature of economic, social and cultural rights obligations;
• Opponents of the OP identified concerns that questions of justiciability were a distraction, the key concerns related to whether an OP would provide an effective means of ensuring realisation of economic, social and cultural rights;
• They also continued to argue that economic, social and cultural rights are political not legal questions, and that it is inappropriate to empower an international treaty body to determine whether governments are allocating appropriate resources to the realisation of economic, social and cultural rights. In response, proponents of the OP argued that economic, social and cultural rights can be subjected to judicial adjudication, and that in the experience of domestic processes, the courts had not engaged in a debate on resource allocation, but rather considered whether individuals or groups of individuals were being denied their human rights;
• Debates around justiciability also merged with debates on hierarchies of rights. Delegates challenging the justiciability of economic, social and cultural rights argued that they were not suggesting a hierarchy of rights, rather that economic, social and cultural rights were not suitable for individual complaints;
• Supportive delegates also continued to raise that the Optional Protocol would not create new obligations, but rather implementation and accountability for existing obligations.

In terms of first-time government participation, the following countries made interventions:
• Turkey (ambivalent);
• the Holy See (supportive, including call to support ongoing mandate of the Working Group);
• Australia (greater clarity through the debates, but identified on-going serious concerns)
• Yesterday, Germany (supportive) spoke for the first time.

In general, European governments continue to be the majority participants, though GRULAC participation is increasing.

NGO activities
Activities have focused on:
• Delivering interventions, a number of NGOs have made useful interventions which have clarified points of law, responded to government questions, highlighted national, regional and international experiences, particularly those related to justiciability;
• Bi-lateral lobbying with supportive delegations, ambivalent delegations, and those opposed to the Optional Protocol;
• Working with regional blocks – NGOs had a very productive meeting with the Group of Latin American and Caribbean States (GRULAC) in the morning, and continued to work bilaterally with delegations throughout the day.

Action Alerts for NGOs: There are no pressing issues which require action.

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