Geneva, 16 July -- The essential importance of economic, social and cultural rights to the international human rights edifice is still in many ways not fully recognized, the High Commissioner told a panel working on a mechanism to allow individuals who allege that their governments have violated these rights to submit complaints to an international body. Speaking at the panel’s opening meeting yesterday, the High Commissioner said the endeavour to implement in practice a unified vision of international human rights, true to the ideals of the Universal Declaration of Human Rights, “has been a guiding light for me personally and for the work of the Office of the High Commission for Human Rights”. The adoption of a complaints mechanism would be an important step to fulfil the comprehensive vision of the Universal Declaration, she added.
Thank you Chairperson [Ms. Catarina Albuquerque (Portugal)]
It is my pleasure to join you today as you are about to embark on an important new phase in your work – to negotiate an optional protocol to the International Covenant on Economic, Social and Cultural Rights.
The approaching 60th anniversary of the Universal Declaration provides a compelling occasion to promote and reaffirm the equal status, interdependence and indivisibility of all human rights. Your work holds the promise of making a significant and lasting contribution in this regard, and I consider it to be among the most important standard setting efforts of the new Human Rights Council.
The Universal Declaration embodies the essence of what international human rights are all about. The Declaration is inspired by the aspiration for a world in which all human beings “enjoy freedom of speech and belief and freedom from fear and want”, and it is founded upon the belief and understanding that this aspiration can only be fulfilled through the realization of all human rights - civil, cultural, economic, political and social.
These ideals and aspirations are no less relevant today than they were 60 years ago. Yet, in the practice, the essential importance of economic, social and cultural rights to the international human rights edifice is still in many ways not fully recognized. In recent years, however, we have witnessed an important shift and movement towards a greater recognition of the indivisibility and interrelatedness of all human rights. A process that the 1993 Vienna Conference helped set in motion and which among others led to the establishment of this working group.
The endeavour to implement in practice a unified vision of international human rights, true to the ideals of the Universal Declaration, has been a guiding light for me personally and for the work of the Office of the High Commission for Human Rights. Such comprehensive vision is fundamental to empower people to realize their rights and to address the key challenges facing the world today, such as poverty, discrimination and conflict.
The lack of a communications mechanism under the International Covenant on Economic, Social and Cultural Rights remains a manifestation of the asymmetry that still characterizes the international human rights protection system. The adoption of an optional protocol, I believe, would be an important step to fulfil the comprehensive vision of human rights embodied in the Universal Declaration – both symbolically and practically.
It is therefore with great interest that I have followed your work over the past three years. Your complex and enriching discussions on the nature of economic, social and cultural rights, their justiciability and the benefits of a future Optional Protocol have been most enlightening. And, I am pleased that those discussions have born fruit and that the Council has now decided to take an important step forward with this important project.
To facilitate your task, the Chairperson-Rapporteur has prepared a first draft of an optional protocol to serve as a basis for negotiations. The draft text, which is before you at this session, bears witness to the serious and constructive manner in which you have approached your work. I can only encourage you to continue in this way and to accomplish your current mandate in the same constructive spirit.
I am pleased to observe that the discussions in the Working Group have moved beyond the simple argument for or against the justiciability of economic, social and cultural rights. It is now widely recognized that there is nothing inherently non-justiciable about economic, social and cultural rights, a fact which is amply evidenced by the practice of domestic and regional courts all over the world. Indeed, access to legal or administrative remedies is increasingly playing a role in the protection and enforcement of economic, social and cultural rights.
Consequently, as you are about to commence negotiations on a new treaty, the main question that presents itself is not if the International Covenant can appropriately be subjected to quasi-judicial review through an international communication procedure, but rather what the specific nature and modalities of such procedure should be.
Allow me in this regard to comment and reflect on two issues which have been raised in your discussions.
The first relates to the question of whether all provisions of the Covenant might be susceptible to an individual communications procedure – in particular, article 2(1) of the Covenant on so-called “progressive realization”. Since your last meeting, this same issue has arisen in the context of negotiations over an optional protocol to the new Convention on the Rights of Persons with Disabilities. I believe that the outcome of those negotiations is significant for your deliberations.
Allow me to elaborate. The Convention on the Rights of Persons with Disabilities covers the civil, cultural, economic, political and social rights of persons with disabilities. In particular, the Convention, in words similar to the International Covenant, requires States to take measures towards the “progressive realization” of economic, social and cultural rights. The Optional Protocol to that Convention establishes a procedure for individual communications which is comprehensive in nature, covering all provisions of the Convention, including the provision on progressive realization of economic, social and cultural rights. Last December, the General Assembly adopted the Optional Protocol without a vote. By its decision, the Assembly unequivocally acknowledged that all human rights – including those rights subject to “progressive realization” - can appropriately be subject to individual communications. To date, 54 States have signed this instrument.
I encourage you to carefully reflect on this recent development in your negotiations, keeping in mind the need to ensure consistency and coherence with the existing body of international human rights law.
Another issue raised in your past deliberations concerns the role of the Committee in assessing measures taken by States to implement the Covenant. In particular, the question of how an international treaty monitoring body might consider details of national policies or the allocation of social expenditures under an individual communications procedure or under an inquiry procedure.
The Committee on Economic, Social and Cultural Rights has addressed this question head on in a Statement issued in May this year. Importantly, the Committee underlines that each State would enjoy a broad “margin of appreciation” in determining the policies which it considers most suitable in its specific circumstances. The Committee thus clarifies that, in assessing communications under an optional protocol, it would adhere to the “margin of appreciation” doctrine – also reflected in the jurisprudence of regional human rights courts and the Human Rights Committee.
The margin of appreciation conferred to States in policy making is, however, not absolute, and independent review by domestic courts and, in the second instance, by international bodies, plays an important role in ensuring that States act in compliance with their international human rights obligations. As the Committee points out in its Statement, the role of an international quasi-judicial review mechanism is not to prescribe policy measures, but rather to assess the reasonableness of such measures in view of the object and purpose of the treaty. For example, a policy that discriminated against women in the provision of essential medicines would clearly not meet such reasonableness criteria. Again, as the Committee points out, a failure take reasonable measures, if established by the Committee, would give rise to a recommendation that remedial action be taken, while deferring to the discretion of the State party concerned to decide on the means of doing so.
Chairperson, distinguished delegates,
I would like to point out that, obviously, an optional protocol – and legal protection more generally – is no panacea for the realization of economic, social and cultural rights. The protection of these rights requires both the effective protection of other rights and a range of broader measures, including rights-based policies and programmes and international cooperation. Yet, a clearer recognition of economic, social and cultural rights and a strengthened system of protection at the national and international levels are essential parts of any comprehensive strategy for the promotion and protection of these rights.
An optional protocol – offering an equivalent level of protection to that provided in other international core human rights treaties – would send a strong message that economic, social and cultural rights enjoy the same status and level of importance as other rights within the United Nations human rights system. An optional protocol would also serve to ensure that individuals have an opportunity to be heard and that they have access to remedies in cases of violations. The experience of other communications procedures shows how such mechanisms have served to give voice to individuals, including those in the most vulnerable and marginalized situations, and draw attention to their problems.
Equally, in the context of globalization and an increasingly interdependent world, I believe an optional protocol could serve as a rallying point for international efforts for the implementation of economic, social and cultural rights. The Covenant itself, in several articles, underlines the importance of international assistance and cooperation to promote the realization of economic, social and cultural rights. In some instances, a communications procedure could potentially serve to identify specific challenges faced by States and the kind of assistance needed to meet those challenges. In short, an optional protocol would help reinforce social justice as a value of the international community.
Chairperson, distinguished delegates,
In conclusion, I urge you not to miss this historic opportunity to rectify the current imbalance in the United Nations human rights protection system.
Sixty years on, your work holds the promise of making a significant step towards fulfilling the vision embodied in the Universal Declaration. I encourage you to deliver on this promise to ensure that economic, social and cultural rights take their proper place within the international human rights protection system.