Geneva, 8 February
Submission to the Open-Ended Working Group Regarding the Communications Procedure (Proceedings on the merits; Friendly settlement of disputes; Interim measures; Views; Follow-up to views)
Friendly settlement of disputes
The NGO Coalition does not preclude the possibility that the OP-ICESCR may include provision for the parties to reach a friendly solution on the issue, based on the respect of human rights and the requirements of the ICESCR. Attempts to achieve a friendly settlement between the parties, however, should not be permitted to thwart the broader purposes of the Covenant. In addition, attempts to promote amicable settlement must not be allowed to prejudice the subsequent consideration of a communication/complaint should mediation fail. In light of these concerns, mediation and settlement procedures should comply with the following minimum requirements. They must:
(a) be an optional, non-mandatory procedural step;
(b) be limited in time;
(c) be without prejudice to future adjudication of the dispute;
(d) be disclosed only to designated staff or members of the Committee, and
not placed before the same members of the Committee who may later review the communication if the mediation should fail;
(e) not defeat the object or purpose of the Covenant;
(f) not serve to endorse or otherwise condone a breach of an ESCR violation or result in a continuation of such a breach; and
(g) the terms of settlement should be subject to review and approval by the Committee, and must also be subject to follow-up procedures in order to monitor its implementation. This is essential to ensure that the settlement reached is in accordance with the Covenant and properly implemented.
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.
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. Experience of friendly settlement procedures in other forums, such as the Inter-American Commission on Human Rights, demonstrates the need to have strict limitations upon the time taken to implement friendly settlement, and for the importance of close monitoring by the supervisory body. Crucially, the supervisory body, ex officio or upon request from one of the parties, must be empowered to end the friendly settlement and continue the adjudicatory process in the case of undue delay or incomplete implementation of the friendly settlement.
Interim measures
The NGO Coalition believes that interim measures should be possible, for example, to prevent irreparable physical or mental damage to the victim, irreversible impact on the victim’s rights or serious retrogressive measures that would be difficult to remedy at a later time, if the Committee subsequently determines on the merits that a violation has occurred, or when it is necessary to preserve the integrity and effectiveness of the future decision of the Committee.
Therefore, the OP-ICESCR should include a specific provision allowing for interim measures which will enable the CESCR to require a State Party to take measures to avoid irreparable damage to the victim of the alleged violation. This possibility should be explicitly included in the OP-ICESCR itself to clarify the legal commitment of States Parties to the principle of interim measures, and to minimize the likelihood of non-compliance which would cause irreparable harm.
This would be in keeping with the developments made in negotiating the OP-CEDAW which includes the possibility for interim measures in Article 5, and the Draft International Convention for the Protection of All Persons from Enforced Disappearance which provides for interim measures in Articles 30 and 31.
Views
It should be left to the Committee to determine the content and scope of its views regarding the merit of the communication. Furthermore, in each instance it should be left to the Committee to determine what kind of measures the State should take to remedy any violation found.
The recommendations adopted by the Committee, in the framework of quasi-judicial decisions in cases of individual communications, must be implemented, in good faith, by a State Party in compliance with the object and purpose of the Optional Protocol, which is an instrument offering to the victim of violations of ESC rights an international procedural remedy for the protection of their rights and reparation. In line with the practice of other treaty bodies, the recommendations issued by the CESCR could include any number (or combination) of possibilities such as those listed below, or any other remedy which the Committee found to be appropriate. No limitations should be placed on the Committee in relation to such recommendations.
Follow-up Procedures
A follow-up procedure would enable the CESCR to monitor and act upon the implementation of its decisions and recommendations. Under a follow-up procedure, the Committee would be empowered to liaise with the State Party, beyond the regular reporting process, to discuss problems that could arise regarding the implementation of a particular decision.
A follow-up procedure would reinforce an Optional Protocol’s complaints procedure as it would: (i) open an avenue to address problems States might face in implementing a particular decision; (ii) provide guidance and support to those States in order to give full effect to a Committee’s decision; and (iii) guarantee that the Committee’s decisions are actually implemented. Follow-up procedures could include the possibility of the Committee taking further action (including, for example, issuing new recommendations) in the case of partial or non-implementation, or requesting information to be included in the States’ regular reports regarding the observance and implementation of the decision.
