The need to go beyond discussion and take action

The High Level Expert Seminar on the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR), held in Nantes in September 2005 (the Nantes Seminar), provided a unique opportunity to gather together an unprecedented number of global experts to address various issues related to the development of an OP-ICESCR. Such an event complemented the discussions currently taking place at the United Nations on this topic, and assisted greatly with clarifying some of the more complex issues under consideration. As an organisation that has been involved for many years in the campaign to promote the drafting on an Optional Protocol to the ICESCR, the International Commission of Jurists (ICJ) welcomed the opportunity to attend this event and participate in the fruitful discussions that took place. The ICJ congratulates Ambassador Doucin and the Ministry of Foreign Affairs for their vision and hard work in organising this conference, and in the preparation of this collection of follow-up materials.

Civil society has been a driving force behind the push for an OP-ICESCR for over 15 years now. It was therefore pleasing to see so many civil society representatives involved in the discussions at the Nantes Seminar. The ICJ works with many other dedicated NGOs on the campaign for an Optional Protocol to the ICESCR, and together with other international, regional and national NGOs and committed individuals we have formed the International NGO Coalition for an Optional Protocol to the ICESCR (1). The International NGO Coalition for an Optional Protocol works to assist activists around the world in their efforts to raise these issues with their governments, and progress the negotiations on the substantive elements of an Optional Protocol.

A number of members of the NGO Coalition for an OP-ICESCR were invited to attend the seminar in Nantes, both as experts presenting on some of the topics under discussion, as well as participants. The NGO representatives present were delighted to see that the ambiance throughout the event in Nantes was extremely positive towards the Optional Protocol and supportive of the need to begin drafting such an instrument as soon as possible.

From the perspective of the NGO representatives such as the ICJ and other NGO Coalition members, this continuation of the momentum for the inevitable drafting of an Optional Protocol was the key outcome of the Nantes Seminar. The challenge we now face, not only as NGOs working on this campaign but also as an international community committed to protecting the human rights of all, is to turn these words and enthusiasm expressed at intersessional events such as this, into concrete action resulting in the drafting and eventual adoption of an Optional Protocol.

During the Opening Session of the Nantes Seminar, a speech was delivered on behalf of the High Commissioner for Human Rights, Mrs Louise Arbour, which summed up this feeling which is also echoed by NGOs:

“While the decisions to be taken clearly rest with States, it is my firm belief that the time is now ripe for an optional protocol in the form of a communications procedure allowing individuals to bring claims to the Committee on Economic, Social and Cultural Rights in the case of alleged violations of any provision of the Covenant. This would be an important development in international law : one that promises to help parties to the Covenant honour the commitments they have made at law, complementing and expanding remedial avenues under the European, Inter-American and African regional human rights systems, and affirming our deeper commitment to the realization for all people of a life of dignity, free from want. Alternatively, a decision not to adopt such a mechanism would also have repercussions, possibly having a chilling effect on the important developments we have seen at the national level to date.” (2)

Beyond this general call for states to begin drafting an Optional Protocol, there were many more detailed aspects of the discussions that took place during the Nantes Seminar that will be useful in the upcoming discussions at the UN and the work of the third session of the Open Ended Working Group to consider options for the elaboration of an OPICESCR (the Working Group).

The first session of the Nantes Seminar focused on the benefits of an Optional Protocol and what added benefit such an instrument would bring to the protection of economic, social and cultural (ESC) rights. In that context, it was noted that an OP-ICESCR would not create any new obligations, but rather would rather provide the victims of ESC rights violations with a forum in which they could seek redress when State Parties to the ICESCR fail to comply with their existing obligations.

As highlighted by the High Commissioner, an OP-ICESCR would become an important tool for developing jurisprudence (complementing the already existing jurisprudence at the regional and national levels), and through that further enhance the justiciability of ESC rights. As discussed by Nathalie Mivelaz from the Centre on Housing Rights and Evictions (another member of the NGO Coalition for an OP-ICESCR), an OP-ICESCR will be a useful in improving the global enjoyment of ESC rights, but for that objective to be achieved such an instrument must be framed in a way that enhances the international protection of human rights. For example, in order to achieve its full potential, an OPICESCR must be comprehensive in its scope, enabling communications to be brought by a wide range of claimants in relation to all rights covered in the ICESCR and all levels of obligations. It should also include aspects that be vital to enhancing its effectiveness, for example a follow-up procedure, the capacity to allow the Committee to conduct inquiries and to issue interim measures (3).

In the second session of the Nantes Seminar, the discussion addressed the various different approaches that could be adopted in a mechanism aimed at providing a forum for victims to seek redress for the violation of their rights. These approaches range from mediation to litigation, and in this regard NGOs remain committed to supporting an OPICESCR that provides for a level of access to justice for victims that is similar to that which is currently provided for by five out of seven of the other treaty bodies : a quasi judicial adjudication of communications by the Committee on Economic, Social and Cultural Rights which is empowered to issue views and recommendations ranging from all types of declaratory pronouncements to recommendations regarding reparations (including restitution, compensation and satisfaction).

One approach discussed in detail during this session of the seminar was the option of friendly settlement or mediation.

The experts and participants in this session discussed how friendly settlement can be a useful step within a mechanism if the outcomes confirm in full with human rights law, but that caution should be exercised before considering that such an approach would be the ultimate step in the adjudication of a complaint. In order to ensure that such a mechanism provides a meaningful remedy for the victims of ESC rights violations, and is not permitted to thwart the broader purposes of the Covenant, certain procedural safeguards must be incorporated. In particular, a friendly settlement must not be allowed to prejudice the subsequent consideration of a communication should mediation fail. In light of these concerns, the NGO Coalition believes that should mediation or friendly settlement provisions be included within the Optional Protocol, it is vital that this be included only as part of a broader communication procedure, and not viewed as an alternative to a complaint/communication mechanism. A friendly settlement mechanism on its own, without allowing for the possibility of resorting to a “full communication” should the mediation fail, establishes a system whereby there is little or no incentive for states to enter into such negotiations in good faith or with the intention of providing appropriate redress for the violation in question. Including limitations upon the time for friendly settlement is also important : the prompt implementation of any friendly settlement and its monitoring by the Committee is essential, particularly to ensure that the friendly settlement procedure is not used to delay sine die the case.

In the third session of the seminar participants were treated to a comprehensive and fascinating overview of various different regional mechanisms and detailed discussions as to how the range of ESC rights are adjudicated within the European, Inter-American and African systems. As the experts demonstrated clearly in this session, the protection of ESC rights at the regional levels is well developed, however no contradiction would arise in having ESC rights adjudicated at the national, regional and universal levels at each forum has its own focuses and methods of work, demonstrating rather a need for a further level of protection at the international level. The important role that a communications mechanism would play in further clarifying the content and scope of the international obligations would provide an important complement to the jurisprudence of regional and national courts and tribunals. Furthermore, it would enhance and complement the existing functions of the Committee on Economic, Social and Cultural Rights, by providing them with detailed experience in adjudication of individual and group complaints which would be of use in their role in reviewing state reports and issuing general comments. Indeed, the broad complementarity of the work of the various bodies was an important feature of this panel discussion, with the further point being made that regional and national adjudicatory bodies already find inspiration in the work of the Committee on Economic, Social and Cultural Rights (especially in its General Comments), and vice versa.

The issue of complementarity was continued in the fourth panel session which discussed the harmonisation and interaction between the national, regional and international procedures. Panelists discussed their views that harmonisation between the different mechanisms is achieved through the application of the principles of subsidiarity, maximum effectiveness and reasonableness. In addition, they cooperate regularly. Experts and participants highlighted the need to “fill the gap” left where no effective procedures are in place at the national or regional level through the introduction of an international mechanism, as well as how an international instrument is still crucial to enhance the protection of ESC rights even in instances where there is already a good level of protection at the national or regional levels. Concerns over harmonisation and fears about duplication are addressed through the long standing rule of international law on nonduplicity and the procedural rule regarding exhaustion of domestic remedies, both of which would be applicable to an OP-ICESCR.

As demonstrated in the fifth session of the seminar, it is not only national and regional experiences on adjudicating ESC rights that raise both useful examples and sources of concern in relation to the elaboration of an OP-ICESCR. Complementarity between an OP-ICESCR and other existing procedures open to individuals, groups and their representatives were also an important issue under discussion. In particular, the mechanisms under examination were those under the auspices of the International Labour Organisation (ILO) and the United Nations Educational, Scientific and Cultural Organisation (Unesco). On this point, attention was paid to how even if the articulation and cooperation between mechanisms is well functioning, an Optional Protocol could complement Unesco and ILO procedures which are limited in nature (i.e. Unesco procedures have confidentiality restirctions), standing (the ILO procedures are not open to individuals or NGOs), and scope (both procedures are limited to cover only certain rights). Excluding some rights from the OP-ICESCR because they are reviewed under other procedures would threaten the indivisibility and interdependence of all rights and would not guarantee effective remedies for the victims, given the significantly different ways in which both the ILO and Unesco provide forum for redress for such rights.

In the latter half of the Nantes Seminar one of the more complex and controversial points for many governments was discussed – the issue of international cooperation and assistance in the context of the Optional Protocol. Here the experts affirmed that Article 2 (1) of the ICESCR (which refers to international cooperation) is an integrated part of the Covenant and could be addressed under an individual complaint procedure, an inquiry procedure or an inter-state one.

One of the important points made by the experts at this seminar was how financial aid is not the only component of international cooperation, which entails quality requirements and negative obligations (i.e. obligations to respect and protect in the context of international cooperation and assistance). The NGO Coalition is of the view that international cooperation and assistance is extremely important in facilitating the full realisation of ESC rights. It has an impact upon a State’s ability to realise its Covenant obligations and upon the violation of the victim’s ESC rights.

The concluding points of the Nantes Seminar state that the seventh session, which addressed which communications could be admissible, which proceedings could be implemented and what effects could be expected, addressed three key points. This session was summarised as concluding that an Optional Protocol should be as simple and as workable as possible; that the need for individuals, groups and their representatives (NGOs) to be allowed to lodge complaints under an OP was stressed, as well as the need for a comprehensive approach; and that as a procedural matter, exhaustion of local remedies are important, but they must not extend for unreasonably lengthy periods.

These broadly reflect the view of NGOs, that the procedural elements of an OP-ICESCR will be what determine its practical workability for victims, and thus it is vital that rules such as admissibility, locus standi, and exhaustion of local remedies are drafted with the victims and their requirements in mind. In this manner, it is essential that standing be granted to individuals and groups of individuals who are victims of ESC Rights, as well as and representatives (for example NGOs), and third parties (such as NGOs) who have a legitimate interest in claiming international protection of ESC rights. Procedural rules should not be used to stifle the ability of victims to seek redress for the violations they are affected by.

The final session of the Nantes Seminar addressed a number of issues relevant to how negotiations should progress in order to seek the outcome that we all desire. In terms of the appropriate body to adjudicate communications under the OP-ICESCR, some valuable discussions were held that added to the general assumption that this body should be the Committee on Economic, Social and Cultural Rights. For example, Professor Martin Scheinin’s presentation prompted consideration of the possibility that after an OPICESCR is adopted, thought could be given to overhauling the remaining divisions between economic, social and cultural rights and civil and political rights through continued treaty body reform. Bruce Porter presented the NGO perspectives on the importance of adopting an OP-ICESCR that is comprehensive in scope, and highlighted the way in which there will be an impact on national adjudication if at the international level adjudication is provided for some rights but not others. He explained the NGO Coalition’s firm belief that there is a danger that a non comprehensive approach could be retrogressive.

Philippe Texier, a Member of the Committee on Economic, Social and Cultural Rights, reminded us that the Committee, in their initial drafting exercise, stressed that this is an optional protocol, but that its content and scope should not be optional and no reservations should be permissible.

The final session reiterated the view that an OP-ICESCR should include a complaints procedure, an investigation procedure, a follow-up procedure, as well as the possibility to take interim measures. In this final session of the seminar participants were encouraged once again to recognise that the debate around whether an OP-ICESCR would constitute interference in national political processes is obsolete. Finally, the seminar finished with delegates and experts reiterating a desire to proceed to drafting an Optional Protocol without delay, and to conclude this drafting exercise as promptly as possible.

The NGO Coalition for an OP-ICESCR, including its representatives who were honoured to be present at these valuable discussions in Nantes, and the many members throughout the world working for the furtherance of economic, social and cultural rights at the national, region and universal levels, support the High Commissioner for Human Rights when she reminded delegates at the Nantes Seminar that : “we are at an important juncture. Protecting economic, social and cultural rights is not only a legal obligation, it also provides a means of combating poverty and social injustice, wherever that might be. While protection must primarily take place at the national and even local level, action at the international level can and does have an effect. Our experience demonstrates that individual communications procedures can have a positive impact on individuals and States.” (4)

Indeed, the elaboration of an Optional Protocol on economic, social and cultural rights has the potential to impact upon the lives of millions of people around the world, enhancing access to justice for many including the poor and marginalised, and assisting states with implementing their existing obligations under the International Covenant on Economic, Social and Cultural Rights.

However, in order to realise this potential for change, delegates must honour the informal commitments they make at forums such as this Nantes Seminar, and participate actively and positively in the future sessions of the Working Group on the OP-ICESCR and the Commission (or Council) on Human Rights, including through proposing and supporting a change in the mandate of this Working Group to enable the commencement of the drafting of an OP-ICESCR.

Discussions such as those held in Nantes should not be forgotten, but rather used as an important basis upon which to progress negotiations on this significant instrument. NGOs such as the ICJ, in collaboration with the other members of the NGO Coalition for an OP-ICESCR, are committed to seeing this Optional Protocol become a reality, and we call on governments to demonstrate a similar commitment.

Notes :

(1) : www.escrprotocolnow.org.

(2) : “Statement on behalf of the High Commissioner for Human Rights on High Level Expert Seminar on Economic, Social and Cultural Rights”, Nantes, 5 September 2005, available at : www.unhchr.ch/huricane/huricane.nsf/view01/44BD89241F61CF7BC125709D0034ECB8? opendocument.

(3) : Further details regarding these and other “minimum requirements” for an OP-ICESCR can be found the in the NGO Coalition for an OP-ICESCR’s written submission to the 2006 Open-Ended Working Group to consider options for an Optional Protocol, which will be available on the NGO Coalition’s website: www.escrprotocolnow.org and the ICJ’s website :www.icj.org.

(4) : “Statement on behalf of the High Commissioner for Human Rights on High Level Expert Seminar on Economic, Social and Cultural Rights”, Nantes, 5 September 2005, available at: www.unhchr.ch/huricane/huricane.nsf/view01/44BD89241F61CF7BC125709D0034ECB8? opendocument.