The Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
"The Right to Development and Economic, Social and Cultural Rights"
Prof. Dr. Eibe Riedel
Verfasser: Jan Lischek
Publikation durch www.Jura-Seminararbeiten.de
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I. Historical Background
II. Progress in Drafting an Optional Protocol
III. The Need for an Optional Protocol
B. Analysis of the main issues related to the provisions of an Optional Protocol
I. The Question of Access
II. Justiciability of Economic, Social and Cultural Rights - or: The Rights subject to a Complaint Procedure
III. Procedural Rules
IV. The Monitoring Board and possible Outcomes
V. Evaluation and additional Aspects
- Literaturverzeichnis -
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From the beginning, the United Nations system for the promotion and protection of human rights has paid lipservice to the "interrelatedness", "interdependence" and "indivisibility" of civil and political rights on the one hand and economic, social and cultural rights on the other. The International Covenant on Economic, Social and Cultural Rights (ICESCR) was created as a central pillar of the International Bill of Rights, it has largely been marginalized and ignored as a human rights treaty. To a great extent, this is a result of the prevalent conception that economic, social and cultural rights are programmatic ideals but not immediate and justiciable human rights1. As Mary Robinson, United Nations high commissioner for human rights, puts it2, today's challenge is to come up with integrated strategies for the promotion and realization of all civil, cultural, economic, social and political rights, including the right to development. Thus, the following analysis intends to inquire whether and in what way an optional protocol to the ICESCR providing for a complaint procedure could be a positive contribution to the implementation of human rights, particularly in view of the not yet resolved question of justiciability of economic, social and cultural rights.
I. Historical Background
The origins of an individual complaints procedure relating to human rights violations in the framework of the United Nations date back to the years 1949/1950. In 1950, the United Nations General Assembly called upon the Human Rights Commission "to proceed with the consideration of provisions, to be inserted in the draft covenant or in separate protocols, for the receipt and examination of petitions form individuals and organizations with respect to alleged violations of the covenant"3. As is well known, the ensuing Cold War did not only result in the development of two separate Covenants with different sets of implementation systems for the reason of the ideologically motivated division of human rights into two categories of rights in 1951, but also prevented the Human Rights Commission to include any reference to individual complaints even in its final draft on the Covenant on Civil and Political Rights (CCPR) of 19544. In 1966, the two Covenants and the first Optional Protocol to the CCPR had been adopted5. Inevitably, proposals for a petition procedure relating to economic, social and cultural rights were specifically rejected during the drafting of the ICESCR. Surprisingly, two years later the first World Conference on Human Rights held in 1968 in Teheran called upon "all governments to focus their attention ... on developing and perfecting legal procedures for prevention of violations and defence of "economic, social and cultural rights"6. This has not further been pursued by the relevant UN bodies during the 1970s and 1980s.
II. Progress in Drafting an Optional Protocol
The Committee on Economic, Social and Cultural Rights, established in 1985 as expert committee for the examination of the state reports according to the Covenants obligation by the Economic and Social Council of the UN became the driving force behind a new initiative to draft an optional protocol to the ICESCR aimed at establishing an individual complaints procedure. After some preliminary discussions the Committee in 1990 requested its then rapporteur Mr. Philip Alston to prepare a discussion note outlining the principal issues that would appear to arise in connection with the drafting of an optional protocol permitting the submission of communications7. In 1991 Mr. Alston submitted a first note to the Committee8 discussing the principal arguments in favour of and against an optional protocol as well as the various functions of complaints procedures. The Committee discussed this paper during its sixth session in December 19919. In 1992, the Committee discussed Mr. Alston's papers again and supported the idea of an optional protocol in much stronger terms than before10. On most questions the maximalist approach of Mr. Alston was followed by the Committee. In particular, they agreed that the procedure should be open to all individuals and groups and that it should cover all the rights recognized in the Covenant. The Committee requested Mr. Alston to prepare a revised and consolidated document which would combine his two working papers and reflect the main points of the debate. This analytical paper was formally adopted by the Committee in 1992 and submitted to the 1993 Vienna World Conference on Human Rights. The World Conference supported the idea of an optional protocol without any reservation and encouraged "the Commission on Human Rights, in cooperation with the Committee on Economic, Social and Cultural Rights, to continue the examination of optional protocols to the ICESCR"11. As a first step in implementing the recommendation of the World Conference, the Committee in 1993 requested Mr. Alston to actually prepare a draft optional protocol. At its 52. session, the Commission on Human Rights took note about the Committee's elaboration of a draft optional protocol as recommended by the World Conference on Human Rights and requested the Committee to submit a report on the matter to its 53. session. The Committee continued and concluded its consideration of a draft optional protocol at its 15. session12 and submitted a report to the Commission on Human Rights13. Currently, governments an non-governmental organizations are requested for their comments and statements to be submitted to the 54. session of the Commission on Human Rights14. Besides, an expert meeting convened by the Netherlands Institute of Human Rights (SIM) in Utrecht (Netherlands) from 25-28 January 1995 presented another draft optional protocol based on Mr. Alstons draft and the discussions at the meeting15. It is not yet clear what form the optional protocol will ultimately take, or whether States will in any event be willing to sign16.
III. The Need for an Optional Protocol
There are numerous arguments supporting the adoption of a complaints procedure under the ICESCR. These include the improved enjoyment by people of economic, social and cultural rights, a strengthening of international accountability of States parties, increased congruence in the legal standing and seriousness accorded to both Covenants, a refinement of the rights and duties emerging from the provisions of the ICESCR, and a structural and concrete affirmation of the indivisibility and interdependence of all human rights17. Such a system would vastly increase the level of national and international awareness of both the Covenant and the Committee and is likely to motivate States to do more to institute national legal remedies with regard to economic, social and cultural rights18. The Committee could also improve the supervision system and would provide the Committee with the ability to develop the normative content of the rights19. This would be in compliance with the Committee's conception of itself as being a catalyst of domestic processes20.
The principal argument against the creation of a petition system relating to economic, social and cultural rights has been, and remains, the idea that they are essentially non-justiciable21. More specifically, it is argued that, given the promotional nature of the rights, the absence of a clear understanding of the obligations and the generality of their terminology, it would be impossible for a supervisory body to decide whether or not a State is acting in conformity with its obligations under the Covenant22.
Regardless of the question of justiciability of each right in the Covenant, one can identify certain rights in the covenant that require immediate implementation and therefore would traditionally be suited to judicial determination23. In particular, article 3 (equal rights for men and women), article 7(a)(i) (equal remuneration for work of equal value), article 8 (trade union rights), article 10 (3) (protection of children from exploitation), article 13 (4) (right to establish and direct educational institutions), article 15 (3) (freedom of scientific research and creative activity). This suggests that there is, in fact, a justiciable core to every human right and indeed that it would be theoretically possible to operate a petition system with respect to economic, social and cultural rights24. Additionally it is one of the aims to further clarify the normative character of the Covenant's rights. An optional protocol should not be regarded as best way of enforcement, but as one part of an integrated, multidisciplinary implementation strategy.
B. Analysis of the main issues related to the provisions of an Optional Protocol
Generally speaking, the operative provisions of an optional protocol like the present one have to deal with a number of obvious issues. The analysis aims to present the main issues of debate related to the form that the optional protocol would take and to evaluate the discussed approaches. It therefore refers to the Committee draft (1996), the Utrecht draft (1995) and the first Optional Protocol to the ICCPR.
I. The Question of Access
According to the Optional Protocol to the ICCPR only individuals have the right to submit a communication. This formulation proved to be a serious shortcoming not only in relation to the right of peoples to self-determination. It in fact deprives all groups and legal entities such as political parties, trade unions, religious associations, business companies and other organizations to submit a complaint against a violation of their rights25. In question is also the inclusion of an inter-State complaints procedure within the proposed optional protocol.
1. Individuals and groups complaints
The issue of whether, as far as economic, social and cultural rights are concerned, a right of communication should be individual or collective or both, has caused a lot of discussion. The Additional Protocol to the European Social Charter had excluded individual complaints and adopted a restrictive list of group-based complainants. The Committee discussed a range of possibilities, but considerable support was expressed for the procedure to be open to both individual and group complaints26. Also the Utrecht draft decided for this option27. In order to maximize the opportunities for the procedure, providing for individual complaints would be extremely desirable. According to the Utrecht experts, economic, social and cultural rights are first and foremost individual rights. In the regard whether groups, one or more of whose members claimed to be a victim of a violation, should also be permitted to submit complaints, the Committee recalled the reference in Commission on Human Rights resolution 1994/20 to "granting the right of individuals or groups to submit communications", and noted that the Human Rights Committee has, in practice, dealt with many communications submitted by individuals on behalf of affected groups and vice versa. Groups should be included among those alleged victims entitled to submit complaints.
2. States and NGO's
After a long discussion the Committee decided not to recommend the inclusion of an inter-State complaints procedure within the proposed optional protocol28. It was noted that such a procedure is included in various of the other core human rights treaties. All such procedures apply only between States which have mutually accepted the relevant procedure. Also the Utrecht draft does not provide for a system of inter-State complaints. Non-inclusion of an inter-State system may be taken as a reflection of the development in international law of human rights, as a result of which the individual from an object has become the central subject of that body of law29. The American Association of Jurists opposes in stating, that States are, by definition, inevitable subjects of international law. The association demands the inclusion of a provision extending the right to submit a communication by States30. In view of the specific nature of the rights contained in the case of the ICESCR the capacity of States to submit communications should extend not only to complaints of violations committed in another State, but also to violations committed in their own territory by another State or by an international or transnational enterprise whose headquaters are in another State. Although I agree with the prevailing opinion not to include inter-State complaints in an optional protocol, the new aspect of the AAJ, to extend the State's capacity of submitting communications concerning violations committed in their own territory by another state or by international or transnational enterprises seems to be interesting on the background of globalisation and a possible increase in international political attempts to handle this process. This will be discussed later following.
The next issue is whether "standing" to submit a communication should be extended to "third parties", or, in other words, individuals and groups who, although not themselves victims of a violation, have what is deemed "a sufficient interest" in the matter. This broad approach is not necessary merely in order to permit a communication to be submitted by another person or group on behalf of an individual claiming to be a victim of a violation. This would therefore seem to envisage a situation in which a public interest group or some other type of non-governmental organization might be authorized by the protocol to bring a complaint without having to identify and act with, or on behalf of, an individual or group claiming to be a victim of a violation. While this would have the advantage of permitting complaints which sought to anticipate violations, whether imminent or merely possible, it would also broaden considerably the scope of the obligation assumed by States parties and would potentially open the door to speculative complaints. The Committee recommended that the right to submit a complaint should be extended also to individuals or groups who act on behalf of alleged victims, but noted, that this formulation should be interpreted only to embrace individuals and groups who, in the view of the Committee, are acting with the knowledge and agreement of the alleged victims31. It should be noted that contrary to the present Committee's draft, standing according the Committee's draft of 1994 was only planned for "any individual or group claiming to be a victim of a violation". The explicit mentioning of NGO's provoked fears of popular complaints by NGO's which would diminish the chance of ratification by many States32. Like the Committee's earlier draft, also the Utrecht draft proposes as a solution that "any individual, group or organization, claiming to be a victim of a violation may submit a communication33. In my opinion it is to be welcomed that the Committee finally decided to include the right to submit a communication to third parties acting on behalf of alleged victims. The only effective protection against a popular action is a strict victim requirement. If only victims are permitted to submit a communication, I cannot find any reason why NGOs should not be entitled, to act on behalf of alleged victims in cases where victims are not able or are effectively prevented by a government to submit complaints themselves. Supporting the Committee's draft, I concur the NJCM comment34 in explicitly and separately mentioning organizations with independent locus standi35 as well as with the possibility to claim being victims themselves (e.g. trade unions), because this would enhance the access to the complaints procedure, although article 2 (1) of the Committees final draft optional protocol is formulated to potentially include these options.
II. Justiciability of Economic, Social and Cultural Rights - or: The Rights subject to a Complaint Procedure
The Committee's opinion is that the optional protocol should be applicable to all economic, social and cultural rights in the Covenant36. It is common in the human rights literature to point out that civil and political rights are justiciable, while economic, social and cultural rights are not37. The problem relating to the legal nature of social and economic rights does not relate to their validity but rather to their applicability38. The creation of an optional protocol to the ICESCR might be premature in view of the possibility of a lack of justiciability or to be precise where the core requirements of those rights have yet to be defined with precision.
1. The question of justiciability
Complaint procedures may be useless if the right in question is not justiciable or is recognized through gradual implementation, or does not depend on the State or other public authorities alone but also on the conduct by various private actors39. In broad terms, there is a general conclusion that economic, social and cultural rights as identified in various treaties are non-justiciable40. These conclusions are based on the assumption of a strict separation of two categories of rights. This is an obvious practical shortcoming in view of the evident overlap of the provisions of different treaties, and the consequent overlapping of issues. There are examples to illustrate the artificiality of the separation: In the United Nations, the right to education is identified as an economic, social and cultural right and thus not justiciable. The same right is protected in Protocol I and the European Convention of Human Rights and Fundamental Freedoms and thus has been the subject of litigation. The right to self determination, the freedom to form and join trade unions and protection for the family and children are further instances of overlapping treaty provisions. The result of these overlaps make it absurd to insist that depending on the treaty in which they appear, the issues they raise may or may not be justiciable41. In my opinion this makes clear that only a subtly differentiated approach to each right can decide over justiciability. Besides, a distinction usually identified between civil and political rights and economic, social and cultural rights relates to the preciseness of the definition of the rights in the international instruments. It is sometimes argued that civil and political rights, unlike economic, social and cultural rights, are capable of, and indeed have been the subject of, precise definition, and are thus easily justiciable. To me a lack of precise norm definition is an argument for an optional protocol. The supervisory body has the chance to put the rights in concrete terms. Besides, one has to think over the concept of justiciability. In my opinion there are stong arguments for the assumption of a justiciability in a conventional, narrow sense and a justiciability in a comprehensive sense: As far as rights concern a comprehensive approach to their implementation, a conformist approach of justiciability including more aspects of monitoring than just narrow, juridical aspects. Of course, this does not exclude that at least some contents of economic, social and cultural rights can be reviewed in a narrow justiciable sense. The generality of formulation does not collide with this concept as will be explained later following. The assumption of a justiciability in a comprehensive as well as in a narrow sense can be compared with Michael Addo's concept, who wishes justiciability to be as a review mechanism for the attainment of a just result, dependent on finding the most appropriate means of achieving the review without jeopardising the aims and purposes42. He sees justiciability as achievable in one or two forms - inquisitorial and adversarial. Inquisitorial justiciability is obligation-based and involves the institution of an enquiry mechanism as undertaken by bodies such as the Human Rights Committee when it examines state reports equally important. It is a review mechanism not directly aimed at individual violations of rights, but generally benefits all those whose rights are, or are likely to be, adversely affected. Inquisitorial justiciability has a preventive ring to its application. In contrast, adversarial justiciability as form of review mechanism is individual-oriented and rights-based. A complaint is to be filed by the victim followed by attempts to prove the particulars of the violation. The violator of the rights is then called upon to contest the complainant's allegations. On the basis of the available evidence, the court reaches a conclusion and makes a determination as to whether there has been a violation or not and if so what follow-up orders are appropriate. Adversarial justiciability - by which a state action is directly contested - may not be the best action in international law where state powers to determine individual access to international tribunals is virtually unlimited. In such circumstances, inquisitorial justiciability offers a better mode of safeguarding human rights43. In summary, on can distinguish two elements within the concept of justiciability44: Adversarial justiciability points to the mechanisms of court procedure, of complaint and defence. Inquisitorial justiciability is more concerned with those processes of review which examine the facts of a case, requiring reports and commenting on them. This involves, for example, the notion of assessing states' performance and states' compliance with their obligations and treaties.
Another set of alleged differences between the two groups of human rights which affects their justiciability relates to the nature of state obligations. It has been argued that state obligations arising from civil and political rights require abstention on the part of states to ensure full compliance, while the obligations arising from economic, social and cultural rights require positive acts and above all the commitment of financial resources. These apparent differences in state undertakings underlie the belief that civil and political rights involve immediate obligations whereas economic, social and cultural rights which require policy action have relativism and aspirationalism built upon them. The association of negative obligation with civil and political rights and positive obligations with economic, social and cultural rights is superficial and its use to determine justiciability is equally superficial. In today's world, ensuring the free exercise of civil and political rights will often involve significant state intervention and the incurring of considerable public expenditure in order to establish a system of courts, to train police and other public officials, and to establish a system of safeguards against potential abuse of rights by state officials themselves. Positive and negative obligations thus do cut across both civil and political rights and economic, social and cultural rights45.
To deepen the reflections about the nature of economic, social and cultural rights, especially the different aspects of positive and negative State obligations, the relation between the Covenant's rights and the way of realization in or by the State. It is often presumed that the principle dimension of the rights is in their legitimization of claims against the State for the provision of certain social benefits whether it be housing, social security, food, employment, health care or education. Indeed, it is entirely probable, that during the drafting of the Covenant, States had in mind the establishment of large centralized systems for the provision of these various public goods46. Fifty years later, however, such a vision does not appear consonant with current economic doctrin that demands tight control over public expenditure, and invites the privatization of public services and the substitution of State control by market forces. Nor is it entirely consonant with the reality in many countries in which the main providers of education, housing and food, are not States, but rather communities or individuals themselves. It may be questioned, whether it is appropriate that the notion of a right to housing, for example, is to be defined solely as a right to be given a house by the State. One point is very clear: Even if the State may wish to leave the provision of public goods in the hands of private individuals or corporations, it remains ultimately responsible for the realization of the rights in the Covenant. This means that even if housing or education are to be delivered by the private sector, the State must ensure that the operation of the market is fair and equitable and that marginalized and disadvantaged sectors of the population are guaranteed at least minimum levels of enjoyment. By the same token it also means that the State should not interfere unnecessarily in cases where individuals and communities have sought to satisfy their own need for housing, food or education47. There are two assumptions underlying these reflections: First, that it is possible to identify a minimum core content of the rights, and secondly, that some element of State action concerning the operation of the market may well be necessary, for example the setting of a market order frame, consumer protection, fusion control and monopolies control, or the correction of unsocial market results. In my view, economic, social and cultural rights do not plead for or content a claim for the establishment of a specific economic policy.
In order to improve understanding of the legal character of economic, social and cultural rights, new approaches are being sought both in the literature and within the UN. One of the objections to economic, social and cultural rights is that they are vague norms implying no properly defined obligations on States. A. Eide submitted a study on the normative content of the right to food and the corresponding obligations of the State. Eide identifies a three-tier typology of obligations which States party to the ICESCR have towards individuals under their jurisdiction48. The first level is an obligation to respect. This obligation forbids the State itself to act in contravention of recognised rights and freedoms. This means that the State should refrain from interfering with or constraining the exercise of such rights and freedoms. The second level is the obligation to protect. This requires the State to take steps - through legislation or by other means - to prevent and forbid the violation of individual rights and freedoms by third parties. The third level of obligations is the obligation to fulfil. This requires the State to take further positive measures with a view to ensuring the effective realisation of rights. This obligation can be described as a programme obligation and implies a certain long-term view. It will generally calls for a financial input which cannot be realised by individuals alone. This typology of obligations provides a means if analysing the responsibility of States for the realisation of economic, social and cultural rights. The approach also demonstrates that the realisation of a particular right may require both abstention and intervention on the part of governmernts.
In relation to the right to food the approach could be put in concrete terms as follows:
- obligations to respect (no expropriation or resettlement without equal compensation, no taxation of subsistance level, consideration of cultural or religious diets in case of state food support)
- obligations to protect (legislation of consumer protection)
- obligations to fulfil (food programmes if necessary)
In my view there might be a problem in this approach in so far as it could be utilized to give "legal" reasons for a specific political approach. The way of realization of the rights is a political decision. Taking the universal aspect of human rights - also of economic, social and cultural rights - into account, neither their validity nor their applicability should be dependent on a specific political approach of realization. A connection between a specific policy, being subject to for example economic knowledge and theory, and a concrete formulation of an obligation to protect or fulfil might stand in contrast to the rights universality. For example, the introduction of tuition fees does not mean by definition a violation of the right to education and the States corresponding obligation to protect free access to educational institutions, because there are various political forms like the promotion of scholarship programmes to guarantee a 'de facto' free access for every citizen, at least to make sure that tuition fees do not prevent anyone from visiting educational institutions.
Human rights cannot exist unless there are corresponding governmental obligations. Once human rights are identified, it is only the breach of core governmental obligations stemming form these rights which can be deemed justiciable49. Alston50 has made a major contribution to the thinking about economic, social and cultural rights by observing that many provisions included in international conventions are characterised by ambiguity when it comes to the normative content of rights. By way of example he cites the provision of the ICESCR. In order to trace and clarify this normative content, Alston suggests that for each right a core content should be identified, which would then constitute a minimum claim. Corresponding to that minimum core content there would be a minimum obligation on States party to the Covenant. It would be for the Committee to identify both minimum core content and minimum obligations in relation to each individual right. This approach was adopted by the Committee in its General Comment on Article 2 (1) of the ICESCR51.
For me the "minimum core content / minimum obligations" approach seems to be the best way to answer the question of justiciability (in a narrow sense) in the affirmative. Economic, social and cultural rights are justiciable in an inquisitorial sense. Adversarial justiciability requires the identification of both minimum core content and minimum obligations. A complaint procedure as it could be introduced by an optional protocol would be a positive contribution to the definition and protection of the core content of the rights. To promote the comprehensive implementation of economic, social and cultural rights, the inquisitorial level of the rights' justiciability should be strengthened.
2. The range of rights covered by a complaints procedure
The next issue is whether the procedure should apply to all of the rights recognized in the covenant or only to some of them. The Committee has identified four alternative options in this respect52. These include the following:
a) the procedure applies only to certain selected rights, on the assumption that the scope of the coverage would be gradually expanded over time;
b) each State party may indicate at the time of ratification of or accession to the optional protocol the rights to which the procedure applies in respect of itself;
c) the procedure applies to all of the specific rights recognized in articles 6-15 of the ICESCR;
d) the procedure applies to all the rights contained in the Covenant.
After canvassing four different options, the Committee's analytical paper submitted to the World Conference opted for an inclusive rather than a restrictive approach. The Committee recommended that the optional protocol should apply in relation to all of the economic, social and cultural rights set forth in the Covenant and that this would include all of the rights contained in articles 1 to 15. The Committee noted that the right to self-determination should be dealt with under this procedure only in so far as economic, social and cultural rights dimensions of that right are involved. It considered that the civil and political rights dimensions of the right should remain the preserve of the Human Rights Committee.
Another issue, closely related to the previous one, is whether provision should be made to enable States to accept the procedure provided for in the optional protocol either in relation to all of the provisions of articles 1 to 15 (a "comprehensive approach") or only in relation to particular elements of the Covenant (a "selective approach" or "smörgasbörd / à la carte approach"). After a long debate over this issue the majority of the members of the Committee who participated expressed a clear preference for a comprehensive approach which would require any State becoming a party to the optional protocol to accept the relevant procedure in relation to all of the rights recognized in the Covenant. In the other hand, a strong minority favoured the adoption of a selective approach which would permit States to accept obligations only in relation to a specified range of rights. The minority considered that this could be achieved either through requiring States expressly to "opt out" of provisions that they would need to identify at the time of becoming a party to the protocol or through enabling them to "opt in" in relation to provision which they would specify53.
In my opinion, an optional protocol should follow the recommendation of the Committee in drafting a comprehensive approach. On the one hand, a selective approach would invite States parties to exclude unpleasant rights or articles of the covenant. This could give the impression that human rights are objects of the States' good will. On the other hand, if States have general reservation about the complaint procedure, they are free not to join the optional protocol. Besides, I agree with the NCJM that a selective approach would be a contradiction to the indivisibility and interdependence of all human rights54.
III. Procedural Rules
The conditions of admissibility have to be met before the supervisory body is able to deal with the matter submitted to it through the complaints procedure. The Utrecht draft and the Committee draft follow in their admissibility conditions the usual ones as they are laid down in other international instruments. The most relevant of those instruments is the first optional protocol to the ICCPR. The various procedural rules of the Committee's draft are based directly upon its formulations. Just to give an overview the provisions (as formulated in the Committee's draft) will be cited:
a) Inadmissible are anonymous communications and communications directed at a State not being a party to the protocol (Art. 3 (1)).
b) Communications are to be declared inadmissible if they do not contain allegations which would constitute a violation of the covenants' rights (Art. 3 (2) (a)).
c) Inadmissible are communications constituting an abuse of the right to submit a communication (Art. 3 (2) (b)).
d) Inadmissibility relates to acts and omissions which occurred before the entry into force of the protocol for the concerned State party (except if those acts or omissions continue to constitute a violation of the covenant after the entry into force of the protocol for that state party or have effects continuing beyond the entry into force of the protocol and those effects appear themselves to constitute a violation of a right recognized in the covenant) (Art. 3 (2) (c)).
e) All available domestic remedies have to be exhausted (Art. 3 (3) (a)).
f) A communication must not be examined under another procedure of international investigation or settlement (Art. 3 (3) (b)).
2. Substantiation of complaints
In any complaints procedure there is an onus placed upon the complainant to provide information giving substance to the allegations having been made. It is appropriate to provide the Committee with the opportunity to re-examine a communication if new information is provided to it after it has already taken a decision to declare the communication inadmissible on the basis of its first examination (Art. 4 / Committee draft).
3. Interim measures
The proposed text of article 5 of the Committee's draft contains a specific provision dealing with interim measures. The Committee may request the State party concerned to take such interim measures as may be necessary to avoid an irreparable harm on the precondition that a preliminary study at any time after the receipt of a communication and before a determination on the merits has been reached, gives rise to a reasonable apprehension that the allegations, if substantiated, could lead to such irreparable harm55.
4. Friendly settlement
The great majority of communications procedures provide for the possibility of reaching a friendly settlement with the State party concerned. Particulary in view of the nature of economic, social and cultural rights, it would seem especially appropriate to provide for a procedure of friendly settlement in the draft protocol. For this purpose the Committee specifically indicates its preparedness to facilitate such a settlement, provided only that the resulting arrangement is based upon respect for the rights and obligations contained in the covenant56.
IV. The Monitoring Board and possible Outcomes
The operative provisions include, first and foremost, the establishment of the supervisory organ, its composition as well as it functions and powers. The latter should comprise the competence to receive communications and to examine these according to a fixed procedure on the basis of the admissibility conditions. The State party recognizes the competence of the Committee to receive communications.
1. Supervisory body
Article 1 oft the Committee draft and the Utrecht draft regulates the establishment and the composition of the supervisory body. In this respect the envisaged optional protocol presents a special case. The preamble of the Committee draft and of the Utrecht draft entrust the supervisory functions and powers under the optional protocol to the existing Committee. This approach has advantages and complications. As far as complications are concerned the first one to be dealt with consist of course of the fact that the Committee is based on a decision by the Economic and Social Council of the United Nations and, therefore, does not constitute a treaty body. This situation is remedied in the sense that the optional protocol clothes the Committee with treaty status as far as the optional protocol is concerned. The present Committee will have to rely on three different legal foundations: On decision 1985/17 as far as its functions and powers regarding the reporting procedure are concerned, on the envisaged optional protocol for its functions and powers with respect to the right of individual communication, and on the ICESCR as far as the substantive parts of its work are concerned57.
2. Competence of the supervisory body
According to the Committee draft, the States party recognizes the competence of the Committee to receive communications of victims who claim a violation of any of the rights recognized in the covenant and the examination of the communications. Nowak states, the term "violation" would underline that the concept is not restricted to civil and political rights but can be equally applied to economic, social and cultural rights.58
3. Examination of communications
The first optional protocol to the ICCPR specifies that the Committee shall base itself upon "all written information made available to it by the individual and by the State party concerned" (art. 5 (1)). Not excluding information from any source provided only that it is specifically submitted by one party or the other, it is a generous provision. The view of the Committee is that it seems unduly restrictive and counterproductive for the Committee not to be able to take into account information which it has obtained for itself form other sources. The Committee recommends the inclusion of authorization for such action to be undertaken by it, on condition that any such information would also be provided to the parties concerned for comment. A significant additional element to the Committee draft on relation to the ICCPR protocol is the inclusion of the possibility of a visit to the territory of a State party as part of the Committee's examination of a communication. By providing such an option, to be employed only if the State party concerned wishes to exercise it, the procedure would have the flexibility required to enable the Committee, in cooperation with the State party, to tailor the best approach under the circumstances. The Committee proposes that the final views of the Committee will be made public at the same time as they are communicated to the parties directly involved59. In my opinion the Committee draft should like the Utrecht draft refrain from holding closed meetings when examining the communication. This would increase the public interest of the procedure.
4. Results of examinations
Article 5 (4) of the first optional protocol to the ICCPR is extremely weak as it only speaks of (legally not-binding) views which the Committee shall forward to the parties. In practice, the Human Rights Committee interpreted this provision in a fairly broad sense and issued from the very beginning quasi-judicial decisions which contain not only a clear statement on the violation of covenant articles as well as which remedies States parties have to take (restitution, compensation, rehabilitation, measures to prevent similar violations in the future) in order to provide justice to the victim60. Article 8 of the Committee draft follows this approach by explicitly stating that the Committee may recommend specific measures and that State parties shall take all necessary steps to remedy any violation and inform the Committee within six months of all measures taken61. The Utrecht draft goes one step further: Article VIII (2) expressly states that the State party concerned shall take all steps necessary to remedy any violation of the rights in the covenant. It shall give due regard to any suggestions or recommendations made by the Committee, including the provision of adequate reparation. On the one hand it makes sense to bind the States party to follow the Committee's recommendations. On the other hand this might be in contrast to the "spirit of consultation" of the Committee's work. I agree with the Committee which does not recommend to include a provision expressly obligating the State party concerned to implement the Committee's recommendations. Making such measures legally mandatory would transform the nature of the procedure from a quasi-judicial to a judicial one. In this case, more complex procedures in general would be necessary, including a greater variety of procedural safeguards for the parties concerned62, for example a right of appeal.
V. Evaluation and additional Aspects
The adaption of an optional protocol to the ICESCR is only one aspect of the implementation of economic, social and cultural rights. In my opinion, the character of those rights, including both programmatic and legal aspects, in any case in its realization dependent not only on legislative, administrative and judicial measures of states, need the development of an integrated, holistic approach. The interdependence of human rights with other fields such as environmental protection, peace and development as well as law has to be recognized. Julia Häusermann demands for a positive, solution-oriented approach, forging a Grand Alliance between many disciplines, professions involving first and foremost the poor and disadvantaged themselves, as well as UN bodies, academics, the mass media, trade unions, indeed all sectors of society63. As direct consequence for all measures for the protection of economic, social and cultural rights64 like a complaints procedure should be the integration of a strict principle of a public procedure: The power of public opinion and of the markets65 can be more useful for the implementation than any juridical procedure.
Although one should be aware that judicial mechanisms and legal remedies may not be a sufficient tool to protect human rights effectively, especially economic, social and cultural rights66, I would like to draw the attention on a new attempt to face one aspect of the problematic nature of the implementation with a quasi-judicial measure. Central aspect of a complain procedure is the accusation of a party of the Covenant in the sense of a violations approach, trying to find the violation of State party's obligations67. In a traditional judicial sense, the state is accused of its unwillingness to fulfil the Covenant's obligations. But there is another point as already mentioned before. The American Association of Jurists brought up a new aspect: To extend the State's capacity of submitting communications concerning violations committed in their own territory by another state or by international or transnational enterprises. This seems to be interesting on the background of globalisation68. The new procedure's central aspect is the inability of states to fulfil their obligations under the Covenant. The interdependence of international economic and political measures and policy can provide a heavy burden on the states policy for realization of economic, social and cultural rights. The proposed procedure could be called as "examination procedure". Only states would have the right to submit a communication. There would not be a "defendant". Aim of the communication is the examination if there are any circumstances making it impossible for a state to follow the Covenants obligations. This would result in a statement of the Committee. On the one hand this could offer an exculpation for the submitting state, on the other state there would be an appeal on the responsibles for these circumstances to rethink their policy. The examination procedure would not legally bind anyone, but could provide something like a "human rights MOT" for GATT, WTO policy, multinational corporation policy etc. It could contribute to the aspect of the prevention of human rights violations rather than accusation. If the matter of the suggested examination procedure could better be achieved by extension of the reporting procedure or by establishing a separate procedure is not up to my decision.
The analysis showed that there is a justiciable core to every human right and that it would be theoretically possible to operate a petition system with respect to economic, social and cultural rights. Additionally, it could contribute to further clarify the normative character of the Covenant's rights. An optional protocol should not be regarded as best way of enforcement, but as one part of an integrated, multidisciplinary implementation strategy.
- Fußnoten -
1 Matthew Craven, 'The International Covenant on Economic, Social and Cultural Rights', in: R. Hanski and M. Suski (eds), An Introduction to the International Protection of Human Rights: A Textbook, Turku/(bo: (bo Akademi University, Institute for Human Rights, 1997, p. 115
2 Mary Robinson, 'Human Rights Arent't Divisible', International Herald Tribune, December 9, 1998
3 GA Res. 421 (V) F.
4 for historical development see Manfred Nowak, 'The Need for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights', International Commission of Jurists, The Review - No. 55, December 1995
5 for general information on the two covenants see Otto Kimminich, Einführung in das Völkerrecht, 6. Aufl., Tübingen/Basel: Francke, 1997, p. 341 et seq.
6 Res. XXI, para. 6, Final Act of the International Conference on Human Rights, UN Doc. A/CONF. 32/41 (1968)
7 UN Doc. E/1991/23, para. 285
8 UN Doc. E/C.12/1991/WP.2.
9 UN Doc. E/C.12/1991/SR.13 and 14
10 UN Doc. E/C.12/1992/SR. 11
11 UN Doc. A/Conf. 157/22, para. 75
12 UN Doc. E/C.12/1996/SR.44-49 and 54
13 UN Doc. E/CN.4/1997/105
14 see first comments in UN Doc. E/CN.4/1998/84 and UN. Doc. E/CN.4/1998/84/Add. 1
15 F. Coomans and F. v. Hoof (eds), 'The Right to Complain about Economic, Social and Cultural Rights: proceedings of the expert meeting on the adoption of an optional protocol to the ICESCR, held from 25-28 January 1995 in Utrecht', SIM Special No. 18, Utrecht: SIM, 1995
16 Matthew Craven, see supra note 1
17 The Committee on Economic, Social and Cultural Rights, Fact Sheet No. 16, Geneva: United Nations, 1996, p. 32; Bernhard Ehlert, 'Hintergründe und Argumente für ein Individualbeschwerdeverfahren (optional protocol) zum Internationalen Pakt über die wirtschaftlichen, sozialen und kulturellen Rechte, FIAN Arbeitskreis Menschenrechtstheorie/ -politik, Herne, 1995, p. 18
18 UN Doc. E/C.12/1991/WP.2, para. 36; UN Doc. E/C.12/1992/23, para. 362; Fons Coomans, 'Economic, Social and Cultural Rights', SIM Special 16, Utrecht, 1995, p. 36
19 Matthew Craven, 'The International Covenant on Economic, Social and Cultural Rights', Oxford, 1995, p. 99; NJCM Commentary on the Draft Optional Protocol to the ICESCR, NJCM-Bulletin, jrg.23 (1998), No. 2, p. 237 et seq.
20 Bruno Simma, 'Die internationale Kontrolle des VN-Paktes über wirtschaftliche, soziale und kulturelle Rechte: neue Entwicklungen', in: U. Beyerlin (a.o. Hrsg.), Recht zwischen Umbruch und Bewahrung - Festschrift für Rudolf Bernhardt, Berlin/Heidelberg: Springer, 1995
21 Statement of the German Government, October 30, 1997, UN Doc. E/CN.4/1998/84
22 Statement of the Canadian Government, February 6, 1998, UN Doc. E/CN.4/1998/84/Add. 1
23 The Limburg Principles on the Implementation of the ICESCR in: Human Rights Quaterly 9 (1987), 122-135, para. 8, 21-23
24 Matthew Craven, see supra note 19
25 Manfred Nowak, see supra note 4
26 Matthew Craven, see supra note 19
27 F. Coomans and F. v. Hoof (eds), see supra note 13, p. 233
28 UN Doc. E/CN.4/1997/105, para. 14
29 Fried van Hoof in: F. Coomans and F. v. Hoof (eds), see supra note 19, p. 158
30 Comment by the American Association of Jurists to the draft Optional Protocol, September 30, 1997, in: UN Doc. E/CN.4/1998/84
31 UN Doc. E/CN.4/1997/105, para. 23, 31
32 Manfred Nowak, see supra no. 4
33 F. Coomans and F. v. Hoof (eds), see supra no. 19, p. 234
34 NJCM Commentary, see supra no. 19
35 'locus standi' = right to be heard in a court
36 UN Doc. E/CN.4/1997/105, para. 25
37 Katarina Tomasevski, Justiciability of Economic, Social and Cultural Rights, International Commission of Jurists, The Review, no. 55, December 1995, p. 203
38 Martin Scheinin, 'Economic and Social Rights as Legal Rights' in: A. Eide/C. Krause/A. Rosas, Economic, Social and Cultural Rights: A Textbook, Dordrecht/Boston/London: Martinus, 1995, p. 41
39 Allan Rosas and Martin Scheinin, 'Implementation Mechanisms and Remedies', in: A. Eide/C. Krause/A. Rosas, Economic, Social and Cultural Rights: A Textbook, Dordrecht/Boston/London: Martinus, 1995, p. 356
40 see proofs at Michael K. Addo, 'Justiciability Re-examined' in: R. Beddard and D. M. Hill (eds), Economic, Social and Cultural Rights: Progress and Achievement, London: Macmillan, 1992, note 2
41 Michael K. Addo, see supra note 39
42 Michael K. Addo, see supra note 39, p. 104
43 Michael K. Addo, see supra note 39, p. 99
44 Dilys M. Hill, 'Rights and their Realisation' in: R. Beddard and D. M. Hill (eds), Economic, Social and Cultural Rights: Progress and Achievement, London: Macmillan, 1992, p. 17
45 Michael K. Addo, see supra no. 39, p. 102, with further proofs
46 Matthew Craven, see supra no. 1, p. 107
47 Matthew Craven, see supra no. 1, p. 108
48 see proofs at Fons Coomans, see supra no. 18, p. 9 et seq.; see also Bernhard Ehlert, see supra no. 17, p.15 et seq.
49 Katarina Tomasevski, see supra no. 36, p. 206
50 see proofs at Fons Coomans, see supra no. 18, p. 10
51 UN Doc. E/1991/23 Annex III
52 UN Doc. A/CONF.157/PC/62/Add. 5; UN Doc. E/CN.4/1997/105, para. 24
53 UN Doc. E/CN.4/1997/105
54 NCJM-Commentary, see supra no. 19, p. 241
55 UN Doc. E/CN.4/1997/105, para. 36/37
56 UN Doc. E/CN.4/1997/105, para. 38
57 Fons Coomans, see supra no. 18, p. 155
58 Manfred Nowak, see supra no. 4, p. 161
59 UN Doc. E/CN.4/1997/105, para. 42-44
60 Manfred Nowak, see supra no. 1, p. 163
61 UN Doc. E/CN.4/1997/105, para. 49
62 UN Doc. E/CN.4/1997/105, para. 47
63 Julia Häusermann, 'The Realisation and Implementation of Economic, Social and Cultural Rights", in: R. Beddard and D. M. Hill (eds), Economic, Social and Cultural Rights: Progress and Achievement, London: Macmillan, 1992
64 for an overview see Monique C. Castermanns-Hollemann, 'The Protection of Economic, Social and Cultural Rights within the UN Framework', Netherlands International Law Review, Vol. XLII, 1995, p.353
65 an example for public opinion are the principles of the "The Body Shop": Campaign "Make your mark for human rights"
66 Allan Rosas and Martin Scheinin, see supra no. 39, p. 355
67 Audrey R. Chapman, 'A "Violations Approach" for Monitoring the International Covenant on Economic, Social and Cultural Rights', Human Rights Quaterly, Vol. 18, February 1996, p. 23
68 for globalisation and economic, social and cultural rights see Krysti Justine Guest, 'Exploitation under Erasure: Economic, Social and Cultural Rights engage Economic Globalisation', Adelaide Law Review Vol. 19, 1997, p. 73 et sep.; Committee on Economic, Social and Cultural Rights, Statement on Globalisation and Economic, Social and Cultural Rights, May 1998
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