Open-Ended Working Group established by the Commission on Human Rights to consider options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights
Third Session, Salle XVII, Palais des Nations
Monday 6 February 2006
Thank you madam Chair [Ms. Catarina Albuquerque, from Portugal],
I am delighted to have the opportunity to open this session as you continue your discussion of options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights.
UN reform - security, development and human rights
This time last year, I had the pleasure to share with you some of my views on the important work you are engaged in. Since your last session, the United Nations has embarked on a complex and far-reaching process of reform which has important implications for your work. That reform has been rooted in the reaffirmation of the mutually reinforcing relationship between security, development and human rights. As emphasized by the Secretary-General in his report “In larger freedom” and endorsed by Member States at last year’s Summit, development and security are inter-related, and respect for human rights is essential to both.
I believe that progress in your discussions has a role to play in promoting security, development and human rights. At the heart of this relationship is the realization that poverty, and other denials of human rights, can greatly increase the risk of instability and violence, that conflict leads to abuse of human rights and sets back development, and that countries respecting human rights are better placed to avoid conflict and to overcome obstacles to development. Improving respect for economic, social and cultural rights is therefore essential to ensuring the contribution of human rights to both development and security.
A renewed focus on economic, social and cultural rights is crucial if we are to meet the challenge of reform. In spite of the constant reaffirmation of the interdependence of all human rights, many of our strategies are still based on an unhelpful categorization of rights - between civil and political on the one hand and economic, social and cultural on the other. This categorization of rights has skewed the implementation of human rights, to the detriment of those rights labelled economic, social and cultural and of the wider development and security agendas. The reaffirmation of economic, social and cultural rights as human rights sought from the efforts of this working group will help to redress the unbalanced approach of the past and ultimately reinforce the reform process, providing an opportunity to move beyond simplistic categorization of rights towards an understanding of human rights that focuses on people - their security and development - and their capacity to claim the totality of their rights.
Consideration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights raises some significant legal questions - not least the justiciability of such rights. The Plan of Action I issued for my office – our contribution to the reform effort – has called for leadership in protecting economic, social and cultural rights, to reaffirm their legal status and strengthen the recognition of their justiciability. Allow me to share again some thoughts with you on this subject.
While some economic, social and cultural rights - such as workers' rights - have long been subject to judicial enforcement, the last ten years has seen an increasingly sophisticated national and regional jurisprudence in relation to other economic and social rights. Court decisions in Argentina, Colombia, India, South Africa and many other jurisdictions have demonstrated how the judiciary can play an important role in providing relief to individuals and in ensuring that governments uphold constitutionally guaranteed economic, social and cultural rights.
Judicial and quasi-judicial decisions have improved access to HIV/AIDS treatments for thousands of women to prevent mother-to-child transmission of the HIV virus; restricted the arbitrary eviction of destitute people from housing without support to access alternative shelter; improved water and sanitation services for poorer suburbs prevented widespread hunger through the monitoring of food programmes and reduced the incidence of child labour.
Recognition of the justiciability of economic, social and cultural rights often raises the complex question of resource constraints and the appropriate role of the judiciary in this regard. International human rights standards under both Covenants impose on States a series of obligations, some of which have been labelled "negative" obligations - to refrain from certain action - and others "positive" obligations - to adopt specific measures. Resources are needed to implement aspects of all human rights. Ensuring due process in criminal justice proceedings, ensuring free and fair elections or taking appropriate measures to reduce the risk of torture, can require the investment of significant resources by the State. In many cases, the efforts deployed by the State will be progressive and proportional, linked to the availability of resources. Yet this link to the availability of resources does not reduce these rights to aspirations or State obligations to mere policy goals. Nor does the need for progressive realization justify the invidious perception that economic social and cultural rights are luxury goods, to be claimed and enjoyed only by societies that can "afford" them - or again: the assumption that a healthy market economy will automatically ensure their enjoyment. Rather, it requires States to use limited resources "reasonably" and in a non-discriminatory manner - and to be held accountable for doing so.
The concept of "reasonableness" of State action is a well-known legal concept and long used in adjudication of civil and political rights. The growing body of jurisprudence at the national and regional levels illustrates that it can be similarly employed to assess the extent to which States respect their obligations in the area of economic, social and cultural rights. Such rights might not be fully achievable for all on an immediate basis, yet they remain rights. The obligations of States in this domain can be fully enforced while taking into account their resource constraints - and judges have an important role to play in this regard. I should also point out that many aspects of economic, social and cultural rights can be respected at little or no additional expense through simple regulatory changes or through the provision of a remedy to an aggrieved individual.
Of course, improvements in the enjoyment of economic, social and cultural rights rely not only on the judiciary but also on an active civil society, a willing government and respect for civil and political rights. We must also remember that the judiciary is not able to solve all - or even the majority - of social problems and that the eradication of poverty requires concerted effort from government, parliaments and other actors as well. Yet the judiciary, in increasing numbers of jurisdictions, is demonstrating that it has a role to play in the wider strategy of upholding human rights and thus combatting social exclusion and promoting development and preventing social conflict - a role that is essential in poorer and wealthier countries alike.
These improvements have not occurred in a vacuum and the international human rights system has provided impetus for change. The adoption of the International Covenant in 1966 and the construction of regional human rights systems have encouraged judicial recognition of economic, social and cultural rights. In some jurisdictions, the Covenant itself is given constitutional rank. This has reinforced the legal status of economic, social and cultural rights and given further justification to the consideration of claims by national courts. Indeed, some of the most significant national decisions have referred to provisions of the Covenant in judicial reasoning and some have referred to the General Comments of the Committee of Economic, Social and Cultural Rights as a source of useful guidance in interpretation. This indicates an important factor to bear in mind - that the work of the international human rights system can and must have an impact at the national level.
Benefits of an optional protocol
Seen in this context, the deliberations before this working group have a privileged role. I urge States to consider that the time has come for the adoption of an optional protocol in the form of a communications procedure. This would be an important development in international law: one that promises to help parties to the Covenant honour the commitments they have made at law, complementing remedial avenues under the European, Inter-American and African regional human rights systems, and affirming our deeper commitment to the realization for all people of a life of dignity, free from want. You also have other options before you, such as an inquiry procedure, which merit serious attention. Alternatively, a decision not to have a communications procedure at the international level would also have repercussions. Such a decision could undermine the recognition of human rights as equally important and indivisible – a principle fundamental to the understanding of their relationship to development and security – while also having a chilling effect on the important developments we have seen to date at the national level.
Importantly, the elaboration of a possible optional protocol is relevant to the discussion of treaty body reform. As you know, I am calling for States to engage in a serious effort to improve the functioning of the existing system of human rights treaty monitoring bodies including through the consideration of the establishment of a unified standing treaty body. These bodies can and have made an important contribution to the promotion and protection of human rights, but their capacity to assist States can be greatly enhanced. International monitoring should strive to provide maximum opportunities for informed national deliberation and be a source of useful advice and guidance to States in the advancement of human rights protection. It should promote international cooperation, and facilitate full participation of rights holders, providing effective remedies for those whose human rights are violated.
Bearing these objectives in mind, an optional protocol will clearly bolster the current system of treaty monitoring. Importantly, it will help to clarify what is - and what is not - required of States, while providing effective remedies to aggrieved individuals. Ultimately, I hope that an optional protocol will be a step towards the dismantling the unduly rigid categories of rights and a move towards a unified vision of civil, cultural, economic, political and social rights. I encourage you to bear the wider context of treaty body reform in mind during your discussions.
I would like to conclude by recognizing the work of the Government of Portugal that has been so generous in pursuing this objective within the Commission on Human Rights, and in particular I wish to thank the Chairperson, Ms Catarina de Albuquerque, for her excellent stewardship. You have played a vital role in this process.
Madame Chair, distinguished delegates,
You are at an important juncture in your work. This is the last session of your current mandate, taking place at a crucial time for the UN’s work on human rights. I believe that your work is fundamental to improving respect for economic, social and cultural rights and in consolidating the work of human rights treaty bodies. I encourage you to use the next two weeks to ensure that economic, social and cultural rights are fully integrated into our shared vision of the central role of human rights in the international agenda.