We, the NGO Coalition for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR) would like to express our appreciation to the African Group and individual African states for their continued support for the creation of an Optional Protocol and, in particular the consistent position of the African group in favour of a comprehensive OP, which covers all the rights in the ICESCR and for firmly rejecting options suggesting an "à la carte" approach that would defeat the very purpose of this endeavour.
We think that this two-day regional meeting in Cairo is an important opportunity for states to discuss questions of particular importance to the African region. We hope that these discussions will enable all African states to actively participate in the next sessions of the Working Group, to put forward proposals to strengthen the draft text, and to call for the early adoption of a comprehensive and effective Optional Protocol.
The African regional system and courts and national human rights institutions in African countries have produced some of the best examples of legal protection of economic, social and cultural rights. The body of decisions by the African Commission on Human and Peoples’ Rights, and a plethora of case law from African states can provide answers to many of the concerns that have been raised during the sessions of the Working Group.
It is essential that the Optional Protocol affirm and build on the African experience and not weaken it by setting a lower standard of review at the international level. A particular concern in this regard are proposals to limit the Committee’s consideration of the merits of a communication to the obligations [duties] of the State to "respect and protect" rights, thereby excluding a review of the State’s obligation [duty] to ‘fulfil’ the rights guaranteed under ICESCR. Such exclusion would create an artificial and damaging restriction that is applied to the ICESCR alone in contrast to communications under other international human rights treaties.
No such limitation has proved to be necessary under the African regional system and the African Commission has ably and successfully reviewed communications involving the duty to fulfil and its case law has demonstrated the importance of maintaining the integrity of ESC rights in adjudication. Domestic courts within Africa have also done so explicitly and implicitly. Not all of these cases have involved resource implications but when they have, for example, the standard of reasonableness has been ably used to address the limitations on the state in relation to available resources and competing needs, and the integrity of the decision-making process.
We would therefore urge you in your discussions to re-consider any proposal to differentiate between communications related to duties to respect, protect and fulfil. This would contradict the lessons of African jurisprudence and would risk undermining the duty to fulfil ESC rights, which is of course intimately linked to the availability of resources, including through international assistance and cooperation. In this perspective, it is interesting to recall the landmark ruling of the African Commission in the case of SERAC & CESR (Communication 155/96). In its decision, the Commission restated the four obligations of the state with respect to human rights: the duty to respect, protect, promote and fulfil human rights obligations. It insisted that these obligations apply to all the rights guaranteed by the African Charter (including economic, social and cultural rights). The SERAC decision stated specifically that "…there is no right in the African Charter that cannot be made effective".
We have joined the African group in welcoming the focus on international cooperation and assistance in the draft OP as it is clear that international assistance and cooperation forms a component of states’ obligations under Article 2.1 of the ICESCR. We would therefore recommend that Article 8.4 of the draft Optional Protocol should be amended to reflect the place of international assistance and cooperation in Article 2.1 of the ICESCR.
We are also interested in discussing the fund which was originally proposed by the African group. We hope that the present meeting allows us to gain greater clarification on the purpose of such a fund, and how it would complement existing technical cooperation initiatives. We firmly believe that any initiative which would advance the right to an effective remedy for victims of economic, social and cultural rights violations should be carefully considered.
We also believe that the value of the OP will be greatly enhanced if it extends the possibility of interim measures to avoid irreparable harm. For the OP to be fully effective, it must be able to perform a preventative function: to stop harm before it can occur, or to stop an ongoing harm from continuing. Likewise an inquiry procedure would allow the Committee to request the state’s consent to initiate a confidential investigation where it receives credible information, which indicates grave or systematic violations of the Covenant.
The inclusion of both of these mechanisms, alongside an effective individual communications mechanism, in the OP ICESCR would build on the experience of current UN treaty bodies under existing Optional Protocols. It would also confirm that economic, social and cultural rights are of equal value to civil and political rights, and that all human rights are indivisible. Importantly, it would redress the current glaring disparity in remedies for victims of human rights violations.
This is long overdue. We look forward to continuing to work with the Africa group to mark the 60th anniversary of the Universal Declaration of Human Rights with an unequivocal statement that all human rights violations should be effectively remedied.
THANK YOU