FIDH’s oral intervention on the 13th January insisted on the need for an OP to the ICESCR.
It pointed out that a complaint procedure would provide effective remedy for victims of economic, social and cultutal rights violations, clarify State Party obligations under the ICESCR through the development of international jurisprudence, and provide guidance to State parties in the implementation of those rights at the national level.
Because FIDH believes in the universality, indivisibility and interdependence of all human rights, as affirmed by the 1993 Vienna Declaration, it also insisted that the procedure created under an OP should consider all rights included in the Covenant. Economic, social and cultural rights are equally justiciable, as shown by domestic and regional case-law. An OP enabling a selection of certain rights by States would create a hierarchy within rights and undermine the holistic nature of the rights contained in the Covenant.
The statement made by Ms. Louise Arbour, the High Commissioner for Human Rights, supports FIDH’s position by saying that « one of the basic challenges faced by the UN human rights system is that of giving true meaning to the principle of the indivisibility and interrelatedness of all human rights » and that « recognising the status of economic, social and cultural rights as justiciable entitlements is crucial to honouring the political, moral and legal commitment undertaken by States when the international bill of rights was adopted ».
FIDH supports the NGO Coalition Statement presented on 19th January defining the OP that it would like to see considered at next year’s working group session. An OP that provides for individual and collective communications and an inquiries procedure, and that includes:
1) a mechanism to address the issue of international cooperation
2) a provision for interim measures
3) a provision for an early warning / emergency procedures mechanism
4) a mechanism to protect from reprisals against complaints
5) a provision for effective remedies
6) a provision for follow-up measures
7) a provision allowing regional and international organisations to file communications or lodge materials to trigger an inquiry.
In relation to the individual and collective communications, the OP should be comprehensive. It should include all rights contained in the ICESCR , it should include all levels of State obligations - the obligations to respect, protect, and fulfil ESC Rights, and it should include all components of a right and not simply the « core » rights. Individuals, groups of individuals and organisations or bodies acting on their behalf, should have legal standing to submit complaints. The OP to ICESCR should also include provisions to address exhaustion of domestic remedies.
In relation to the inquiries procedure, the OP should include provision for fact-finding missions to the State Party concerned. While the cooperation of the State Party should be sought, failure to obtain such cooperation should not preclude conduct of the inquiry. The OP should also provide that inquiries may be triggered by information received from States, UN agencies, individuals, groups of individuals and organisations.
FIDH is pleased with the progress made this session, particularly with the working group’s ability to adopt by full consensus this session’s report. A considerable number of delegations requested that the Chairperson be invited to elaborate a paper with elements for an OP in order to facilitate a more focused discussion at the third session of the working group. Delegations made concrete proposals of elements this paper should include. The number and variety of proposals including the alarming option of having no OP, is a reason alone to encourage more interactive and constructive discussions.
FIDH supports all efforts taken during the interim period at a national, regional, or international level to assist State understanding of the importance of economic, social and cultural rights and of elaborating an OP to the ICESCR to ensure the protection of these rights with the provision of effective remedies to victims.
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