Day Two: Tuesday 7 February 2006
The second day of the session was the occasion to continue discussions on the scope of rights subject to a procedure and the issue of reservations.
The discussion on the scope was directly linked to the issue of reservations and the two discussions proved to be naturally closely interrelated. Indeed, many states (i.a Spain, Azerbaidjan, Sweden) made clear that reservations would be a way to impose an ‘à la carte’ approach through the backdoor. Sweden and a number of other countries noted that the OP will be a procedural instrument which will not create new rights or obligations, so that reservations would not be appropriate.
The provisions of the Vienna Convention on the Law of treaties on reservations was raised, particularly in reference to the requirements that a reservation be compatible with the aims and objectives of the treaty.
Eibe Riedel, in his capacity as expert, member of the CESCR explained that human rights treaties are by nature different from treaties such as trade agreements where reservations only affect the relation between state A and B and not the well-being of individuals.
The possibility of reservations, however, was defended by several states, such as Morocco, Russian Federation, USA and France as a means to achieve a broad ratification of a future OP. Other states opposed the inclusion of the option for reservations, including Azerbaijan, Finland, Belgium, Brazil, Spain, Sweden, Norway and Portugal (although Portugal suggested this could be accepted as a compromise).
The NGO Coalition and individual NGOs made it clear that reservations to a procedural instrument such as the optional protocol would be incompatible with the objects and purposes of the Covenant and would indirectly create an ‘a la carte approach’. As the Human Rights Committee has made clear, permitting the Committee to consider complaints dealing with some rights but not others introduces distinctions with respect to the implementation of certain rights that is incompatible with the broader purposes of the Covenant.
States like UK, France and Belgium considered the possibility to further develop the discussions on reservations when states have more clarity on the approach which will be chosen.
The Netherlands said that it was premature to talk about reservations as they have doubts about the added value of an individual complaints procedure for the Netherlands and would rather favour a collective procedure.
The afternoon session was dedicated to discussions on admissibility criteria such as standing (who can lodge a complaint), subject matter, jurisdiction and time limits.
The Chair presented the admissibility criteria adopted under the various existing communications procedures (to the other human rights treaties). The discussions following this presentation showed that many delegations were in favour of following the practices under existing communications mechanisms. Intensively debated issues included the proposal by African states, and in particular Egypt, Angola, Ethiopia & Nigeria, to consider the introduction of a new criteria concerning the exhaustion of regional mechanisms. Egypt argued that this proposal is motivated by the fear of the undermining of regional mechanisms. Serious doubts were expressed both by states and NGOs on the value of introducing this new criteria. NGOs affirmed the complementarity of regional and international mechanisms, and the need to reinforce regional mechanisms by other means, rather than by imposing an additional hurdle on rights claimants. Mexico suggested taking advantage of the presentation by the expert of the Inter-American system scheduled for Monday, 13 to further debate the issue.
Canada expressed its opposition to an OP enabling group complaints and stressed the need for a time limit to lodge a complaint after exhaustion of domestic remedies, as well as the need for safeguards to avoid that the CESCR has to review numerous complaints tackling the same problem. UK and Sweden evoked the possibility of restricting communications to those concerning "gross violations". The UK expressed that it would be difficult to consider signing up to a Protocol which would provide for international adjudication of rights which are not adjudicated at the national level and that admissibility criteria could also be limited to only violations of core obligations.
A number of delegations supported exceptions to the principles of exhaustion of domestic remedies in case of unduly prolonged processes or in the absence or ineffectiveness of the national remedies.
NGO activities
The NGO Coalition and individual NGOs have made several statements on the various issues and also provided ad hoc responses to arguments expressed by states. The Coalition met with the Chair of the Working Group and discussed possible outcomes of the working group in the perspective of the forthcoming Human Rights Commission. NGO representatives have also been regularly meeting with delegates to lobby on these issues.
