Firma per il Protocollo Opzionale al Patto Internazionale per iDiritti Economici, Sociali e Culturali.

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Cari amici,Cari amici,


Ecco in inglese una dichiarazione scritta da una coalizione internazionale
per ottenere un Protocollo Opzionale al Patto Internazionale per i Diritti
Economici, Sociali e Culturali.



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JOINT SUBMISSION BY NON-GOVERNMENTAL ORGANIZATIONS, HUMAN RIGHTS

INSTITUTIONS AND CIVIL SOCIETY GROUPS PERTAINING TO THE DELIBERATIONS OF THE
COMMISSION ON HUMAN RIGHTS, INTER-SESSION WORKING GROUP ESTABLISHED TO

CONSIDER OPTIONS REGARDING THE ELABORATION OF AN OPTIONAL PROTOCOL TO THE

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS.



February 2004



Casa dei Diritti Sociali (House of Social Rights)

Membro del Comitato Italiano per la Promozione e Protezione dei Diritti

Umani



Via dei Mille 6

Roma 00185 - Italy

tel. (0039) 064464613 - cell 3474735067

manberg@tin.it

www.december18.net







I.            INTRODUCTION


The fifty-ninth session of the Commission on Human Rights established an
inter-sessional open-ended working group mandated to consider options
regarding the elaboration of an Optional Protocol to the International

Covenant on Economic, Social and Cultural Rights, (hereinafter ICESCR or the
Covenant). Motivated by a widespread concern for the protection and
promotion of economic, social and cultural rights, the undersigned, in
representation of non-governmental organizations, human rights institutions
and civil society, submit the following views concerning the deliberations
of the working group that will meet for its inaugural session in February
2004.



II.            CONTEXT


Guided by principles enshrined in the United Nations Universal Declaration
of Human Rights, it is clear that undivided State party adherence to the
Covenant is of considerable importance in protecting and promoting economic,
social and cultural rights.  It is recognized that, through their
ratification of the Covenant, States parties bear responsibility to ensure
that economic, social and cultural rights are protected and promoted. The

ensuing need to assist in the realization of these rights, through the
provision of a comprehensive international remedial mechanism to intervene
during and/or adjudicate over ICESCR rights violations, is thus of paramount
importance.



III.            MINIMUM CORE CONTENT OF AN OPTIONAL PROTOCOL TO THE ICESCR


The undersigned non-governmental organizations, human rights institutions
and civil society representatives assert that the following minimum core
elements are essential for an Optional Protocol to the ICESCR to fulfill its
potential as an effective mechanism through which economic, social and
cultural rights may be protected and promoted:



(a) Comprehensive Scope



Gathering together representatives from over 170 States, the 1993 Vienna
World Conference on Human Rights was unequivocal in confirming the
universality, interdependence, indivisibility and interrelatedness of civil,
cultural, economic, political and social rights.

Given that the first Optional Protocol to the International Covenant on
Civil and Political Rights, (hereinafter ICCPR), relates in a comprehensive
manner to all of the rights embodied in that Covenant, not to adopt a
similar approach in drafting an Optional Protocol to the ICESCR would be to
directly challenge the universality, interdependence, indivisibility and
interrelatedness of all human rights.[1]

For this reason, an Optional Protocol to the ICESCR should clearly address
all of the rights and State obligations enshrined in the Covenant.



(b) State Obligations to Respect, Protect and Fulfill Covenant Rights



As with the first Optional Protocol to the ICCPR, an Optional Protocol to
the ICESCR should address both negative and positive State obligations
associated with the realization of Covenant rights.

In particular, an Optional Protocol to the ICESCR should entertain
complaints and empower an inquiry procedure where States parties violate
their obligations to respect, protect and fulfill-facilitate/fulfill-provide
Covenant rights.

The obligation to respect requires States parties to refrain from
interfering with the enjoyment of Covenant enshrined economic, social and
cultural rights. This is a negative obligation that mandates States parties
to act in a way that does not violate economic, social and cultural rights
and/or infringe on an individual’s freedom to access these rights. Within
this context, States parties must respect the freedom of the individuals to
take the necessary actions and use the necessary resources alone or in
association with others.[2]

The obligation to protect requires States parties to prevent ICESCR rights
abuses by third parties. In this, States parties must take measures
necessary to prevent other individuals or groups from violating the
integrity, freedom of action, or other human rights of the individual
including the infringement of his material resources.[3]

The obligation to fulfill encompasses State party obligations to facilitate
access to and/or provide for the full realization of economic, social and
cultural rights. This is a positive obligation. The obligation to facilitate
requires States parties to pro-actively engage in activities that strengthen
access to and the utilization of resources and means to ensure the
realization of Covenant rights. The obligation to provide requires States to
take measures necessary to ensure that each person within its jurisdiction
may obtain basic economic, social and cultural rights satisfaction whenever
they, for reasons beyond their control, are unable to realize these rights
through the means at their disposal.[4]

State obligations under the Optional Protocol to the ICESCR must encompass
both negative and positive obligations, thereby enforcing the universality
interrelatedness and indivisibility of all human rights. Such an approach
would also serve as a reminder to the international community, through the
ICESCR/Optional Protocol working group, of the importance it attaches to
economic, social and cultural rights issues and seriousness with which it
now responds to violations.

(c)  An Optional Protocol Complaint's and Inquiry Procedure



Conceptualized as a complaint's mechanism and an inquiry procedure, an
Optional Protocol to the ICESCR would possess the potential to significantly
contribute towards the realization of Covenant enshrined economic,  social
and cultural rights.

An Optional Protocol complaint's mechanism would provide individuals and
groups with access to an international adjudicative procedure. Under this
procedure, individuals and/or groups could communicate directly with the
United Nations Committee on Economic, Social and Cultural Rights, (the
Committee), to seek and obtain remedies for specific violations of rights
contained in the Covenant.

An Optional Protocol’s inquiry procedure would empower the Committee to
initiate an investigation into particularly grave or systematic abuses of
Covenant rights.   An inquiry procedure would reinforce an Optional Protocol
’s complaints procedure as it would: (i) Open an avenue to address
situations where individual/group communications could not adequately
reflect the gravity or the systemic nature of violations of Covenant
provisions; (ii) Allow grave and/or systematic Covenant violations to be
investigated where individuals or groups were unable to utilize the
complaint's mechanism for reasons including fear of reprisals; and (iii)
Enable a more-timely response to grave and/or systematic violations of the
provisions of the Covenant, and to continuing violations in particular.[5]



(d) Standing to Lodge an Optional Protocol Complaint



At a minimum, parties who possess the ability to initiate a complaint,
(standing), under an Optional Protocol to the ICESCR, should include:

(i)            Individuals and group of individuals[6] who have been victims
of violations of Covenant rights by State parties;

(ii)            Representatives of individuals or groups of individuals
empowered to initiate complaints on behalf of individual and collective
victims.

The importance of expressly acknowledging the competence of representatives,
particularly non-governmental organizations and national human rights
institutions to launch complaints on behalf of individual and groups victims
of ICESCR violations cannot be underestimated.  Under existing instruments,
complaints on behalf of individual and group victims have either been
specifically included[7] or such representative standing has been provided
through adjudicative interpretation.[8]  The significance of allocating
standing to such representatives is rooted in the fact that these types of
communications play an essential role in initiating international
complaint's procedures, particularly where victims face the risk of
ill-treatment or other retaliation for directly engaging in the process.[9]



(e)             State Party Reservations Under an Optional Protocol



Precluding reservations to the Optional Protocol[10] to the ICESCR would
represent a significant commitment by States parties which ratify the
Protocol, to uphold the integrity of internationally recognized economic,
social and cultural rights. Excluding the use of reservations would be
appropriate as:

(i)         The raison deter of an Optional Protocol would be to assist
people in realizing their economic, social and cultural rights as enshrined
in the ICESCR.  As a tool to both complement and strengthen the Covenant, to
allow State party reservations to an Optional Protocol would be to undermine
its potential as a tool for the full realisation of economic, social and
cultural rights;

(ii)        An Optional Protocol would by its very nature be optional and as
such, reservations that curtailed its applicability would be unnecessary;

(iii)       An Optional Protocol would be a procedural instrument as it
would neither introduce new nor expand present economic, social and cultural
rights obligations that States parties accepted through their ratification
of the Covenant.  An Optional Protocol would thus merely serve as a means
through which States parties would be encouraged to realize existing ICESCR
obligations.

(iv)       An effective Optional Protocol must recognize the indivisible and
interdependent relationship amongst all Covenant rights. To allow States
parties to individually select the ICESCR rights subject to an Optional
Protocol strike at the core this relationship and the instruments ability to
protect and promote Covenant rights.  Such a selective approach would open
the door to arguments as to the hierarchy of and inequality between
economic, social and cultural rights, thereby encroaching upon the
universality, interdependence, indivisibility and interrelatedness of all
human rights.[11]

Further, permitting the selection of economic, social and cultural rights
subject to the Optional Protocol mechanisms would risk that some States
parties would enhance their international prestige, through ratification,
while restricting the instrument’s substantive application;

(v)        State party concerns that might prompt reservations with regard
to specific aspects of an Optional Protocol procedure could be accommodated
through the provisions of the instrument itself.



IV.       THE DRAFTING OF AN OPTIONAL PROTOCOL TO THE ICESCR: AVAILABLE
RESOURCES



In considering options regarding the elaboration of an Optional Protocol to
the ICESCR, the undersigned urge the open-ended working group to recommend
the drafting of an Optional Protocol text to the 60th session of the

Commission on Human Rights as conceptual issues related to this procedure
have received a thorough analysis from a wide variety of sources that
include:

(i)         The abundant experience and jurisprudence of national, regional
and international bodies/instruments that employ adjudicative/inquiry
procedures related to violations of economic, social and cultural rights.
Reference may be made to the United Nations Human Rights Committee, the
European Court of Human Rights, the European Committee on Social Rights, the
African harder on Human and Peoples' Rights, the San Salvador Protocol,
(Inter-American Commission jurisprudence and country reports), the Optional
Protocol to the Covenant on the Elimination of Discrimination against Women,
the United Nations Educational, Scientific and Cultural Organization
Complaint's Procedure, the International Labor Organization Committee on the
Freedom of Association and an abundance of national jurisprudence;

(ii)                 A plethora of national and international and civil
society conferences and instruments that have clarified the nature and scope
of economic, social and cultural rights and States parties obligations under
the ICESCR. Amongst these, the Declaration of Delhi (1959), the Law of Lagos
(1961), the Limburg Principles on the Implementation of the ICESCR (1986),
the World Conference on Human Rights (1993), the World Summit for Social
Development (1995), the Bangalore Plan of Action (1995), the Maastricht
guidelines on the Violation of Economic, Social and Cultural Rights (1996)
and United Nations/International Commission of Jurists' conferences on the
Optional Protocol and economic, social and cultural rights, (1999, 2000,
2001, 2002 and 2003), amongst numerous others, may be instructive;

(iii)               General Comments from the Committee that have clarified
the nature and scope of States parties Covenant obligations and ICESCR
rights including: international technical assistance measures; the nature of
States parties obligations under article 2; the right to adequate housing;
the economic, social and cultural rights of persons with disabilities and of
older persons; the right to adequate housing, (forced evictions); the
relationship between economic sanctions and respect for economic, social and
cultural rights; the domestic application of the Covenant; the role of
national human rights institutions in the protection of economic, social and
cultural rights; plans of action for primary education; the right to
adequate food; the right to education; the right to the highest attainable
standard of health; and the right to water;

(iv)               Committee discussions, summary records, studies and
reports that have provided further clarification concerning the nature and
scope of economic, social and cultural rights as they relate to an Optional
Protocol to the ICESCR and in particular its work on a draft Optional
Protocol and related issues, (E/C.12/1996/SR.44-49 and 54),
(E/C.12/1996/CRP.2/Add.1), (E/C.12/1994/12), (E/CN.4/1997/105), (E/1993/22),
and (E/C.12/1992/WP.9),

(v)                The draft Optional Protocol to the ICESCR prepared by the
Committee for consideration by the United Nations Commission on Human
Rights, (E/CN.4/1997/105); and

(vi)               Other sources that have further clarified conceptual
issues related to an Optional Protocol to the ICESCR including: the
experience of numerous United Nations Special Rapporteurs engaged in various
aspects of economic, social and cultural rights;[12] the experience of the
United Nations working group under which the Optional Protocol to the
Convention on the Elimination of all Forms of Discrimination against Women
was created; two reports from the independent expert appointed by the
Commission on Human Rights, (resolution 2001/30), to examine the question of
a draft Optional Protocol to the ICESCR; and the vast amount of doctrine
concerning an Optional Protocol and economic, social and cultural rights
issues.[13] Given that conceptual issues related to an Optional Protocol to
the ICESCR have received a thorough analysis from a wide variety of sources,
the open-ended working group should utilize the above listed wealth of
resources as a primary basis point from which the text of an Optional
Protocol to the  ICESCR may be drafted.



(V)       THE DRAFTING OF AN OPTIONAL PROTOCOL TO THE ICESCR: TIMING
CONSIDERATIONS

In conducting its deliberations, the ICESCR/Optional Protocol working group
should bear in mind the Commission on Human Rights decision of 26 April
2000, (E/CN.4/2000/112), which endorsed that working group, mandates should
always offer a clear prospect of an increased level of human rights
protection and promotion, (and that), (i)n creating any standard-setting
working group, the Commission should consider a specific time-frame within
which the group would be called upon to complete its task. ...(i)n most
instances, the established time-frame should not in principle exceed five
years.



Learning from the experiences of other processes that have led to the
establishment of other Optional Protocols, the ICESCR/Optional Protocol
working group should adopt a pragmatic yet determined approach towards the
completion of its mandate.



the Undersigned Manfred Bergmann



on behalf of :

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[1] Arambulo, K., Strengthening the Supervision of the International
Covenant on Economic, Social and Cultural Rights, Theoretical and Procedural
Aspects, Intersentia, Antwerpen: 1999 at 235. See also van Hoof, F.,
"Discussion on the Draft Optional Protocols" in van Hoof, F.  and Coomans,
F., eds., The Right to Complain About Economic, Social and Cultural Rights,
Netherlands Institute of Human Rights, Utrecht: 1995 at 212.   See also See
United Nations reference document E/C.12/1992/WP.9, paragraph 37. Following
a comprehensive approach in drafting an Optional Protocol to the ICESCR
would not preclude the institution of procedural safeguards that would
ensure that the instrument is not abused.   By way of example, while a
comprehensive approach was utilized in drafting the first Optional Protocol
to the ICCPR, in interpreting Article 1 of this Covenant, the United Nations
Human Rights Committee instituted procedural safeguards so as to prevent the
right to self-determination from being the subject of communications.   See
Ominayak v.  Canada, Communication No.  167/1984, Official Records of the
General Assembly, forty-fifth session, Supplement No.   40 (A/45/40), vol.
II, annex IX, section A at 1-30.

[2] Asbjّrn Eide, "Realisation of Social and Economic Rights.  The
Minimum Threshold Approach", International Commission of Jurists The Review
1989, Issue 43, 40, 1989, p.  43.  See also Maastricht Guidelines on
Violations of Economic Social and Cultural Rights, January 1997, para.  6.

[3] Ibid., (Eide) at 42.

[4] The Maastricht Guidelines on Violations of Economic, Social and Cultural
Rights, para.  6.  See also Committee on Economic, Social and Cultural
Rights, General Comment 12, United Nations document reference,

E/C.12/1999/5, para. 15.

[5] Inter-American Institute of Human Rights, Optional Protocol, Convention
on the Elimination of all Forms of Discrimination against Women, Costa Rica:
2000 at 71-72.   An Optional Protocol to the ICESCR inquiry procedure could
be modelled after either Article 20 of the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment or Article 8 of
the Optional Protocol to the Convention on the Elimination of all Forms of
Discrimination against Women, both of which authorise inquiry  procedures in
prescribed situations.

[6] Nowak, M., "The Need for an Optional Protocol to the International
Covenant on Economic, Social and Cultural Rights" in International
Commission of Jurists, The Review: Economic, Social and Cultural Rights and
the Role of Lawyers, France: 1995 at 160.   Limiting standing/ability to
initiate complaints under an Optional Protocol to the ICESCR to individuals
would be to prevent to deprive all groups and legal entities including trade
unions, educative associations, social groups and cultural minorities from
the benefits associated with this instrument.

[7] Providing standing to individuals and organisations to initiate
complaints on behalf of individual and group victims of State party ICESCR
rights violations follows the precedents of Article 2 of the Optional
Protocol to the Convention on the Elimination of all Forms of Discrimination
against Women which states ?Where a communication is submitted on behalf of
individuals or groups of individuals, this shall be with their consent
unless the author can justify acting on their behalf without such consent?,
Article 22 of the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment and Article 77 of the International
Convention on the Protection of the Rights of All Migrant Workers and
Members of their Families.

[8] Supra (Arambulo), note 1 at 223, 233-4.   Through the practice of the
United Nations Human Rights Committee, communications submitted on behalf of
victims of State party ICCPR violations have been accepted.

[9] Supra note 3 at 43.  See also supra note 4 at 161.[10] Article 17 of the
Optional Protocol to the Convention on the Elimination of all Forms of
Discrimination against Women explicitly states ?No reservations to this
Protocol may be permitted?

[11] The United Nations Division for the Advancement of Women Department of
Economic and Social Affairs, The Convention on the Elimination of All Forms
of Discrimination Against Women, The Optional Protocol: Text and Materials,
United Nations: 2000, at 49-50.   See also supra, note 3 at 98-99.   See
also supra note 1 at 236.

[12] For example, housing, education, food and development.

[13] See the work of P.  Alston, K.  Arambulo, M.  Craven, A.  Eide, D.
Harris, P.  Hunt, S.  Liebenberg, B.  Porter, E.  Riedel, M.  Scheinin and
F.  van Hoof, to name but a few.