day 8 of the op-icescr working group

Programme for the day: Delegations met for the afternoon session, ostensibly to consider the report of the Working Group. The report was introduced at 5.45pm, and the Chair has scheduled a meeting for 4pm Thursday. The bulk of the meeting was spent discussing the recommendations and conclusions.  

Key issues arising: The gloves came off today, as delegations got down to political negotiations. While the comments were, for the most part, still veiled in the language of diplomacy, the mood of the room hardened into extremes.

In relation to the conclusions, both advocates for and opponents of an Optional Protocol have challenged their content. Delegates have questioned:
• The exclusion/inclusion of language reflecting discussions on justiciability of ESCR
• The exclusion/inclusion of language reflecting discussions on the three levels of obligations: respect, protect, fulfil
• The failure to mention other options for implementing economic, social and cultural rights, which were mentioned (in passing) by some delegations, particularly those opposed to the OP
• The inclusion of increasing resources for the Committee
• The failure to reflect concerns around complementarity of mechanisms
• The failure to include reference to issues of international cooperation and the right to development
• The legal status of the Committee

In relation to the mandate, a number of proposals have been put forward, including:
• Establishing a three-year mandate to draft an Optional Protocol (South Africa, Russia, Finland, Argentina for GRULAC, Burkina Faso)
• Amending the mandate to “consider the elaboration of an OP” for a period of two years (Chair’s reduced mandate, tabled on Tuesday late afternoon)
• Amending the mandate to include a discussion of “elements and modalities” (Argentina)
• Maintaining the mandate as established in 2003 CHR resolution, “with a view to considering options regarding the elaboration of an optional protocol to the ICESCR”, for a two-year period (supporters include Sweden, Switzerland (also supported one year) Angola has also stated that the mandate can not be changed, but has not expressed views on the time period)
• The above, for a one-year period (India)
• The above, for a one-year period, and for only for five working-days (Australia)
• Amending the mandate to consider “options for the better realisation of economic, social and cultural rights, including an Optional Protocol” (UK, Sweden has also supported discussing other options)
• Challenging the “vagueness” of the mandate, and calling for increased clarity re discussions or drafting (UK, Canada)
• Renewing the mandate of the working-group for a period of one year. (Poland)
• Ending the working group (US)

Delegations in support have begun to argue that consensus is not required to go forward, that the majority of the room has supported renewing the mandate or drafting, and that this should be respected.

Opponents of the OP have adopted multiple strategies including:
• Asserting that consensus is required
• Arguing that consensus is still possible
• Proposing the abolition of the working group
• Requiring that issues of international cooperation and the right to development be incorporated into the discussions
• Renewing the mandate to consider a range of options, including an OP, and beginning to identify a raft of new possibilities – Sweden put forward a whole stack of possibilities

Key lowlights from the day included the intervention by the US. They asserted that there is absolutely no consensus on the OP, called into question the construction of the agenda, claimed that the majority of states in the room did not support the OP (see yesterday for review of whether this statement is accurate), and reiterated its well known position that economic, social and cultural rights are not justiciable and substantively different to civil and political rights. It encouraged the Committee to “abandon” the idea of an Optional Protocol, it encouraged the meeting to recognise that the OP is an “idea whose time is not ripe” and that other options for implementation of economic, social and cultural rights should be considered. The US stated that the open-ended working group should be considered a success for it had provided an excellent venue for a debate, which had revealed that there was no majority support for an OP. It then called for the paragraph renewing the mandate to be deleted.

A number of delegations took the floor in response to the US intervention. Many disagreed with the US assertion that there was not majority support for an Optional Protocol. They reiterated again that there was majority support for an OP. Croatia stated that it supported the OP, in contrast to the US views on its participation.

The challenge from this point on is for the chair to mediate these positions in her effort to achieve consensus. Of course, a key challenge is that both opponents and proponents of the OP no longer support a consensus outcome, and are open to fighting it out in the Commission on Human Rights. Different views abound about whether or not a failure to achieve consensus within the working group context will spell the end of the OP. This is putting considerable pressure on the Chair as she seeks to finalise the report, the conclusions and the recommendations by Friday. Further pressure has been added by the timing of this working group in relation to the CHR. Translation deadlines mean that the option of inter-sessionals before the CHR is not possible.

NGO activities
• We distributed recommendations for improvement of the text, via email and in person;
• We continued to lobby individually;
• The Coalition prepared an intervention, but we were not recognised by the Chair.

Action Alerts for NGOs: Continue to ring, fax, email your capitals to encourage their ongoing participation, to prioritise attending informal-informal meetings, and to challenge the assertions that the majority of delegations do not support the drafting of an Optional Protocol or the renewal of the mandate.

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