Day Five: Friday 10 February 2006
Programme for the day
The focus of the morning and afternoon sessions was the topic of “An optional protocol and domestic decisions on resource allocation”.
Themes from statements
Several States stressed that the implementation of all human rights (civil and political as well as economic, social and cultural) require the allocation of resources. Thus, there will be no significant difference in the cost of implementation of both sets of rights. However, some other States suggested that the obligation to respect and protect ESCR will not imply allocation of resources while the obligation to fulfill will have significant financial implications.
Poland continued to raise obstructive positions in relation to the optional protocol.
Greece stressed that it is of paramount importance to respect the margin of discretion of the States and the Committee should take this into account while interpreting the level of fulfilment of State Parties. The delegate also argued that in cases of discrimination the threshold could be lower.
The delegation of Mexico stressed that an Optional Protocol will aid the objectives of democratic states, giving an opportunity to vulnerable groups in society. While it is true that the Committee is not the organ with more knowledge on each particular State, it is also true that they have great experience analysing the obligations of State Parties to the ICESCR and could provide a guide for a better use of resources.
Germany stated that the compliance of the obligation to respect and protect will not present any problem, but it is necessary to be clear on how the Committee will deal with the obligation to fulfil ESCR.
Portugal stressed that there has been an agreement that the complaint mechanism will only be available after exhaustion of all domestic remedies, therefore the number of cases that will reach the Committee in reality will be very small. Of this small amount of cases many will not have resources implications so the issue, according to this delegation does not present a problem.
The delegation of the United Kingdom suggested that the obligation to fulfil should be left out of the reach of an Optional Protocol. He pointed to the disconnect between the national and the international arena. The delegation expressed that while national courts are constrained by a clear balance of power and by a clear appreciation of the reality of the situations faced at the national levels, the Committee was not and thus had a very wide discretion to enter into questions of macroeconomic policy. He gave as an example the fact that the Committee had asked countries, while analysing State’s reports, whether it was advisable to continue to cover their debt instead of increasing the standard of living of their population. He stressed the importance of including guarantees regarding the application of the principle of margin of discretion and reasonableness (this was supported by other states).
Canada stated that the allocation of resources cannot be underestimated and that there are fundamental differences between civil and political and economic, social and cultural rights. They raised a question on how an international treaty body will be able to assess the difficulties that a government needs to take into account while deciding how to comply with their ESCR obligations. The delegation added that some complaints might have impact on only one or two people, while others might have impact on thousands and asked how will the committee be able to examine the available resources in these cases. They argued that the margin of appreciation needs to be established in the Optional Protocol.
A number of states, including the U.K., noted that one way to give direction to the Committee would be to provide for a criterion of “reasonableness” in the allocation of resources, as was used by the South African Constitutional Court in the Grootboom case.
A large number of NGOs responded on these issues, arguing that the experience in domestic courts and in other treaty monitoring bodies showed that issues of resource allocation were addressed sensitively so as to respect the competence of governments in this area. It was also stressed that there were resource implications to all obligations under the Covenant, and that any attempt to restrict the role of the Committee with respect to this aspect would mean that complaints from the most disadvantaged groups and individuals would not be addressed.
