Geneva, 7 February
Submission to the Open-Ended Working Group Regarding the Communications Procedure (Admissibility criteria, including standing)
Admissibility Criteria
The NGO Coalition considers that all rights should be subject to the procedures to be established by an Optional Protocol and (a) Individuals and groups of individuals who have been victims of violations of Covenant rights by State Parties; (b) Representatives of individuals or groups of individuals empowered to initiate communications on behalf of individual and group victims.
The Coalition also considers that no further limitations upon the territorial and jurisdictional application of the Covenant should be imposed via the Optional Protocol.
The Coalition is of the view that no time limits should be imposed in the Optional Protocol. Due to the nature of violations of ESC rights, temporal restrictions upon communications could exclude consideration of important issues.
However, in accordance with general principle of international law, the Coalition agrees that any violation occurring before the entry into force of the OP-ICESCR or its ratification by a given State would not be admissible.
Duplication of procedures
In the Elements Paper, it is recognised that one criterion for precluding admissibility is that the “same matter has been or is being examined under another procedure of international investigation or settlement”. The NGO Coalition acknowledges that such a criterion is established under some other international procedures. Nonetheless, it considers that this requirement must be examined carefully.
Due to the very nature of ESC rights violations, a communication mechanism should make sure that the examining body has the possibility to address the cases in their complexity. For instance, in a situation of forced eviction, the victims will often face violations of their right to housing, food, education, water, health, to family protection, etc. Other existing procedures may fail to address this complexity and to provide for the holistic approach needed.
The NGO Coalition also observes that the International Labour Organisation (ILO) or United Nations Educational, Scientific and Cultural Organisation (UNESCO) procedures cannot be seen as being of the same nature as a mechanism under an OP-ICESCR. The substantive areas covered by the ILO and UNESCO procedures are not concurrent with those of the ICESCR and these procedures do not provide a like form of redress for victims.
With regards to proceedings before other United Nations human rights treaty bodies, the NGO Coalition notes that they are either not concerned directly with ESC rights, and thus cannot apply the specific approach and expertise, or they are limited to addressing merely the concerns and violations related to certain affected groups (such as women). Thus, they are not adapted to the protection of ESC rights as enshrined in the ICESCR, be it for communications lodged by individuals or for communications emerging from groups. Therefore, examination of a claim under the ILO, UNESCO or other treaty bodies should not, per se, preclude admissibility.
Exhaustion of domestic remedies
The OP-ICESCR could require that domestic remedies be exhausted for a communication to be admissible, except if the application of such remedies is “unreasonably prolonged or unlikely to bring effective relief”. Therefore, if the exhaustion of domestic remedies is unduly protracted, or plainly ineffective or otherwise unavailable to the victim (owing for example, to denial of legal aid) the individual may not be required to exhaust domestic remedies.
The NGO Coalition considers that, as is the case in the Rules of Procedure for the OP-CEDAW, the burden of proof should be on the State. Thus, if a State Party disputes the author’s contention that all available domestic remedies have been exhausted, the State Party shall give details of the remedies available in the particular circumstances.
Standing
The NGO Coalition believes that due to the nature of violations of ESC rights, the capacity to submit communications under an OP-ICESCR should remain as broad as possible.
In particular, it is our collective experience that the poor and marginalised tend to form a disproportionate number of the victims of ESC rights violations. As these same people tend to have the least access to justice to exercise their right to a remedy, it is of the utmost importance to ensure standing for agents to act on their behalf.
At a minimum, parties with competency to initiate a communication (standing) under an OP-ICESCR should include:
(i) Individuals and groups of individuals who have been victims of violations of Covenant rights by State Parties;
(ii) Representatives of individuals or groups of individuals empowered to initiate communications on behalf of individual and group victims.
Individuals and groups of individuals who are victims of violations
All existing communications procedures under the UN human rights treaties provide standing for individual victims of human rights violations. In addition, both the Covenant on the Elimination of Racial Discrimination (CERD) and the OP-CEDAW provide for the ability for communications to be brought by groups of individuals who are victims of rights violations. In practice the Human Rights Committee also extends standing to “groups of individuals” (e.g. Lubicon Lake Band case) .
Building upon these precedents, the NGO Coalition believes that standing, under an OP-ICESCR, should be open to individuals and groups of individuals. Limiting standing, and thus the ability to initiate complaints under an OP-ICESCR, to individuals would be to deprive all groups and legal entities including trade unions, educative associations, social groups and cultural minorities from the benefits associated with this instrument.
Representatives of individual and group victims bringing claims on their behalf
The importance of expressly acknowledging the competence of representatives, particularly from non-governmental organizations and national human rights institutions, to initiate communications on behalf of individual and group victims of ESC rights violations cannot be underestimated. Under existing instruments, communications on behalf of individual and group victims have either been specifically included, or such representative standing has been provided through adjudicative interpretation or practice.
These types of communications play an essential role in international complaints procedures, particularly where victims face the risk of ill-treatment or other retaliation for directly engaging in the process. Further, victims of ESC rights violations are often extremely poor and would thus often not be in a position to make use of the international procedure.
Third parties with a legitimate interest
Including provisions for standing for individuals, groups of individuals and representatives of individual and group victims would provide for the bare minimum required to enable the OP-ICESCR to be an effective forum for adjudicating ESC rights victims’ complaints. This could also be enhanced by allowing third parties (such as NGOs) who have a legitimate interest in bringing a communication to claim international protection for ESC rights.
