Day Seven: Tuesday 14 February 2006
Programme for the day
The focus of the morning session was on the benefits of an Optional Protocol in terms of improving the implementation of ESCR at the national level. The afternoon session was devoted to statements on the Options for an Optional Protocol.
Themes from statements
The session began with a detailed overview from the Chair of the case law mentioned in the Elements Paper, highlighting how these have contributed to changes in legislation, policies or administrative measures for a better implementation of ESCR.
The first statements regarding the benefits of an Optional Protocol was made by the French Ambassador, who amongst other points raised the possibility of an OP having a confidential phase (like the UNESCO procedure) and a second public phase which could resemble the OECD model of communications/complaints (i.e. the OECD Guidelines on Multinationals).
Finland made a statement about how the OP would improve the implementation of ESC rights at the national level and how an OP would result in governments taking these rights more seriously.
Germany explained that while individual communications procedures are a suitable way of promoting human rights they still require some further clarity on how to progress with this mechanism given the number of divergent opinions expressed throughout the working group. They are concerned for the need to progress negotiations on a solid basis with much clarity. On the topic of the benefits of an Optional Protocol (and its impact at the national level) Germany pointed to the potential ‘multiplier effect’ that such a mechanism would have upon implementation at the national level.
Portugal made a strong statement regarding the many benefits for national level implementation and how an OP would lead to increased attention for ESCR at the national level. Amongst other things they highlighted the positive experience they had with adjudication of ESCR complaints through the example of the ICJ v Portugal case.
Mexico also supported the important impact that the Protocol could have at the national level, and explained how in its view there was no point in reaching a consensus without a text in front of us.
Statements were made on the Options for an Optional Protocol by a large number of states and in this session it was notable that many Ambassadors attended to show their government’s strong support for a drafting mandate.
Statements that were made by states throughout the afternoon and in the continuation of the session the following morning can be generally categorised as follows:
(1) states that expressed outright lack of support for the WG (Australia, Poland & USA);
(2a) states who in general agreed with a proposal being put forward by the UK & Canada, because they still support the consideration of the option of no optional protocol (detailed below, including the Netherlands, Japan, Sweden, South Korea, );
(2b) states who in general agreed with the proposals being put forward by the UK & Canada because they are concerned to seek the greatest possible consensus of states and to ensure consideration of the areas that are of concern to them (detailed below, including Luxembourg, the Philippines, New Zealand, China, Greece, Norway, Germany, Romania);
(3) states who expressed support for the renewal and extension of the working group’s mandate to begin drafting a (comprehensive) optional protocol (detailed below, including Morocco on behalf of the African Group, Brazil on behalf of the GRULAC, Argentina, Portugal, Nigeria, Bolivia, Ecuador, Slovenia, Azerbaijan, Congo, Russian Federation, Belgium, France, Iran, Burkina Faso, Italy, Mozambique, Croatia, Ethiopia, Panama, South Africa, Ghana, Mexico, Madagascar, Cuba, Timor Lest, Egypt, Finland, Chile, Guatemala, Spain, Venezuela, Costa Rica, Lesotho, Senegal, Turkey, Angola). Many of the states falling into category (3) also called for a draft text to be elaborated by the Chair: Morocco on behalf of the African Group, Brazil on behalf of the GRULAC, Argentina, Portugal, Nigeria, Azerbaijan, Russian Federation, Croatia, Panama, South Africa, Ghana, Mexico, Cuba, Timor Lest, Egypt, Finland, Chile, Spain, Costa Rica, Angola).
The UK and Canada still have concerns regarding certain issues (allocation of resources, margin of appreciation, existence of judicial remedies at the national level, how would the Committee review complaints) but they do not want to block the process. As such, they proposed an alternative way of moving forward to the proposal that the Chair elaborates a draft for the next Working Group. Their proposal was that the work proceeds on the basis of reflecting the different views of many States, as well as the various approaches outlined in the elements paper regarding the scope of rights to be subject to a complaints and inquiry procedure. They suggested a working document containing textual elements rather than the presentation of a draft text. Canada stressed the importance of consensus in order to render the instrument as universal as possible and supported the idea of a draft paper containing some options for elements of a Protocol.
NGO activities
The NGO Coalition and other NGOs made statements on the benefits of an Optional Protocol and spoke with many states about the need to make strong statements in support of a comprehensive drafting mandate.
