HUMAN RIGHTS COUNCIL DISCUSSES DRAFT TREATIES ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS AND ENFORCED DISAPPEARANCE
Meeting Summaries
Statements on the Report of the Working Group on the Right to Development
JESUS ENRIQUE G. GARCIA (Philippines) said development was a fundamental human right, and was inalienable and indivisible. It was a bridge between civil and political rights on one hand, and economic, social and cultural rights on the other. The right to development was not just about mainstreaming human rights into development, but also injecting development into the human rights discourse at all relevant levels. All parties and stakeholders should aim to fully realise this right in order to enhance multilateral development cooperation and contribute to sustained economic growth.
Developing countries had the primary responsibility for their development, but their efforts should be accompanied by a conducive international environment. This meant, among other things, that developing countries should have the requisite policy space in order to adopt and pursue development policies commensurate with their needs and priorities, particularly in the context of the right to development. The report of the Working Group set out practical recommendations which were the distillation of years of discussions and debate on how to give life to the right to development, and the Council should act favourably on these recommendations.
MELIK ÖZDEN, of Europe-Third World Centre, said that since the adoption of the Declaration on the Right to Development 20 years ago, no real progress had been made in that area; indeed, things had gotten worse. The Working Group established in 1998 had been lost in scholastic debates such as whether the right to development was a right or a right to the “process of development”. For some, development was synonymous with the right to prosperity. The Working Group had thus given in to making dissertations rather than in searching for solutions to the great challenges of our time. The Working Group had to give priority to international issues concerning the right to development and to undertake research and make proposals on, among others, making international cooperation effective, freeing sovereign countries from debt, and ensuring that international treaties and agreements supported the right to development and did not hinder it by forcing peoples to concede their sovereign rights.
YAO AGBETSE, of Franciscans International, said many steps had been taken since the 1986 Declaration on the Right to Development, and constructive discussions had led to some key substantive components. The new dynamic created by the inauguration of the Council should encourage all actors to move forward, mapping out a path leading to renewed political will, sustained commitment, energy and resource mobilisation for an effective realisation of the right to development. A new right to development vision should be centred on genuine dialogue, cooperation and accountability.
LAZARO PARY, of Indian Movement « Tupaj Amaru », said that the dominant economic thinking today was contrary to the right to development. Neo-liberal economists and experts of international financial institutions sought to justify that unequal model and its unjust effects. The impact of the International Monetary Fund and the World Bank since their establishment to date – those two main financial institutions of the United Nations system – had been to constantly impose on poor countries an ultraliberal model whose ramifications were still impacting the world. That thinking advocated liberalization of trade, price freezes, and unbridled privatisation of companies. The logic of globalization meant that external debt was a scourge of global dimensions.
JUSTICE A. S. ANAND, of National Commission of Human Rights of India, said human dignity was the spine of human rights, and was the very foundation on which human rights rested. Human development had come to be accepted as an enhancement of capabilities, widening of choices, and an expansion of freedoms. It was important to appreciate that development, which had to be equitable, and could brook no discrimination in the sharing of the benefits and in the activities producing the benefits between different people, irrespective of gender or caste, religion or geographical disparities. Poverty was the biggest violator of human rights, and its eradication was vital for development. It should not be treated as merely a development project.
IBRAHIM SALAMA, Chairperson-Rapporteur of the Working Group on the Right to Development, said that following yesterday’s discussions, he had found that there was an increasing common ground on many fundamental issues on this topic. The divides that used to haunt the question of the right to development were narrowing. Brazil, on behalf of the Group of Latin American and Caribbean States, had rightly pointed to the uniqueness of the forum of the Working Group on the Right to Development. It was the one space in which human rights and economic groups came together organically and interacted. That was a paradigm shift that allowed them to inject the necessary coherence into the work of the United Nations system, where so many cross-cutting issues did often complicate or cause duplication in their work.
Mr. Salama said that partnerships for development were necessarily of a very action-oriented nature, in fact mainstreaming the right to development into the work of other organizations. The Working Group encouraged the financial institutions to mainstream the right to development in the work of their organizations, such as the World Bank and the International Monetary Fund. That confirmed the relevance of the right to development, it confirmed its added value, and it confirmed its viability. There was a natural alliance between globalization and the right to development, the right to development was a bridge, a melting pot, an overarching right, which gave coherence to that phenomenon.
Report of the Working Group Established to Elaborate an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
The report of the Open-Ended Working Group to Consider Options Regarding the Elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (E/CN.4/2006/47), on its third session which was held from 6 to 17 February 2006, outlines the proceedings of the session. It summarizes the opening statements by the participants, and the discussion on the scope of rights subject to a procedure and the issue of reservations to an Optional Protocol. Other issues which were discussed were admissibility criteria, including standing; merits, friendly settlement, interim measures and views; the inquiry procedure; the inter-state procedure; international cooperation and assistance; domestic decisions on resource allocations; discussion on the inter-American system; relationships with existing procedures; costs of an Optional protocol; the impact of an Optional Protocol; and options regarding the elaboration of an Optional Protocol.
Introduction of Report of Working Group on Elaborating an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
CATARINA DE ALBUQUERQUE, Chairperson-Rapporteur of the Open-Ended Working Group to consider options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights, said a series of relevant activities had been organised which were relevant to the work of the Working Group. The Working Group had before it the Analytical Paper that contained Elements for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, and this document provided the basis for discussion. The Working Group concluded its debates by discussing options regarding the elaboration of an Optional Protocol.
The mandate of the Working Group on an Optional Protocol should now be evaluated. The situation was that of a sad reality where all too often breaches of economic, social and cultural rights were tolerated which, if they were committed against civil and political rights, would provoke expressions of horror and outrage and would lead to concerted calls for immediate remedial action. An optional protocol would provide clear evidence that the Council considered that any human rights violation was intolerable, and demonstrate commitment to the indivisibility of all human rights, as well as the need to afford effective protection and remedies for individual victims. It would also be consistent with the main objective of United Nations reform.
RICARDO GONZALEZ ARENAS (Uruguay) said that Uruguay was convinced that greater efforts to realize civil and political human rights would not effectively ensure the human rights of Uruguayans without creating conditions that ensured the sustainable development of human rights, with equity and social justice. As stated by the High Commissioner for Human Rights, poverty continued to be the greatest violation of human rights, and, in most cases, that situation was reproduced from generation to generation.
Uruguay was in favour of the adoption of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, and supported the continued mandate of the Working Group with a view to setting up such an instrument. International cooperation should continue to be the basic pillar that would help countries to realize those rights.
WOLFGANG PETRITSCH (Austria), speaking on behalf of the European Union, said the universality, indivisibility, interdependence and interrelatedness of all human rights were now firmly established principles. Full and equal emphasis should be given to the realisation of economic, social and cultural rights and civil and political rights, since all human rights derived from the inherent dignity of the human person. The sessions of the Working Group had provided an excellent opportunity to enhance understanding about the dimensions of economic, social and cultural rights, their justiciability, and ways to improve the implementation of the Covenant.
In view of the significant progress achieved in the Working Group, it was important that the Council now take this process forward taking into account all views on an Optional Protocol to ensure that the work could advance in the most effective way.
NICK THORNE (United Kingdom) said the proposal for an Optional Protocol was a far-reaching proposition. The United Kingdom had certain concerns about the shape and scope of such a protocol. In the spirit of consensus, it recognised that there was a body of States ready to step forward to draft such a protocol, and in this spirit suggested the Working Group should begin to draft such a Protocol which could be the basis of future negotiations. However, starting drafting on the basis of a single text which did not reflect differences in approach was not the appropriate way to proceed.
The proposed changes to the mandate could only be accepted if the text were to contain proposals on the various approaches that were already clear. The United Kingdom was flexible, and hoped that its reasonable requests could be met so that the work of the Working Group could move forward in a reasonable and clear manner.
SERGIO CERDA (Argentina) said that Argentina felt that the best way to put all categories of human rights on an equal footing was to adopt an Optional Protocol to establish a system of complaints for economic, social and cultural rights. Argentina would like to see the renewal of the mandate of the Working Group on an optional protocol to the International Covenant on Economic, Social and Cultural Rights, with the new mandate of drafting the Optional Protocol. A system of individual complaints that would cover all rights defined in the United Nations system would lead to easier access to the administration of justice and contribute to the realization of those rights that were linked closely to public policy, such as food, health and education. It was only the actual negotiation of the draft Optional Protocol that would allow for the accommodation of all delegations positions. That task could not be delayed.
IDRISS JAZAIRY (Algeria), speaking on behalf of the African Group, said the mandate of the Working Group should be extended for a further two years. Human rights were inalienable and indivisible, and economic, social and cultural rights were an integral part of the family of human rights, and all human rights should receive equal attention. The implementation and compliance with economic, social and cultural rights was no less important than those relating to civil and political rights. The international community had a key responsibility in matters pertaining to the implementation of economic, social and cultural rights and the linkage between these rights and the fight against poverty.
CLODOALDO HUGUENEY (Brazil), speaking on behalf of the Group of Latin American and Caribbean States (GRULAC), said that the International Covenant on Economic, Social and Cultural Rights had been drawn up at the same time as the International Covenant on Civil and Political Rights. However, civil and political rights already had a mechanism for individual complaints, whereas economic, social and cultural rights did not. The Working Group should begin negotiations on the elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. When the Working Group met in February 2006 it discussed several matters for inclusion in the Optional Protocol and those that would present challenges or difficulties. GRULAC was of the view that the only way forward was to continue negotiations on the basis of a draft Optional Protocol.
GRULAC was of the view that an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights would fill the gaps in respect of those rights that, though they might be partially covered by other instruments, were not fully covered by them. For that reason, GRULAC was not concerned by the question of duplication or overlapping of mandates. GRULAC supported the gradual development of economic, social and cultural rights, as set out in the International Covenant. It also supported the provision of technical assistance to countries to develop those rights. As all human rights were interrelated, the progressive realization of economic, social and cultural rights would serve to advance the realization of the right to development, as well as to ensure political stability and guarantee individual freedoms.
CLODOALDO HUGUENEY (Brazil) said economic, social and cultural rights were less protected in the International Covenant on Economic, Social and Cultural Rights, and the elaboration of an Optional Protocol, by allowing the presentation of individual complaints, would represent the redress of a historical imbalance between those rights and civil and political rights, and the possibility of a real enforcement for economic, social and cultural rights. Since it’s creation, the Working Group had dedicated itself to discussions on the possible aspects of an Optional Protocol.
Brazil favoured the comprehensive approach, covering all articles of the Covenant, in order to avoid the creation of a hierarchy between economic, social and cultural rights. International assistance and cooperation were particularly needed in the case of developing countries. An Optional Protocol would constitute a tool for strengthening cooperation and dialogue among and within States. Economic, social and cultural rights were indirectly focussed in other international instruments, but a comprehensive and detailed approach to these rights was exclusively reflected in the International Covenant.
JOSE A. GUEVARA (Mexico) said that the artificial distinction between economic, social and cultural rights and political and civil rights that had permeated the work of the United Nations since 1948 had now been left behind. All human rights were interlinked and indivisible. They had to be dealt with on an equal footing and given equal attention. However, the international community lacked a mechanism to enforce economic, social and cultural rights, and, in Mexico’s view, that represented an enormous debt to the victims of violations of those rights. The Working Group on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights had satisfactorily completed its mandate. After 40 years of indebtedness to victims of violations of those rights, now was the time to begin negotiation of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. For that reason, Mexico called on the Human Rights Council to extend the mandate of the Working Group. An Optional Protocol would be a major step forward in ensuring the promotion and protection of all human rights for all.
GALINA S. KHVAN (Russian Federation) said greater attention in the Council should be given to economic, social and cultural rights, but this would be difficult. The Council, together, and in a non-politicised manner, should consider the issue and move it forward. The Optional Protocol, aimed at reducing the gap in the international system of human rights, should be moved forward. The mandate of the Working Group should be extended for another two years, under various conditions.
All countries, in a balanced and fair manner, should begin consideration of the document. Countries should have room for manoeuvre to recognise the ability of the Committee on Economic, Social and Cultural Rights to consider complaints. The Optional Protocol should bring economic, social and cultural rights to the same level as civil and political rights.
CARLA MARIA RODRIGUEZ MANCIA (Guatemala) said human rights were inalienable, universal and indivisible. For that reason, the realization of economic, social and cultural rights could not be seen in isolation from the other categories of human rights. The two categories of rights, the economic, social and cultural rights and civil and political rights, should be implemented on an equal footing. It was necessary to establish a separate complaints mechanism for economic, social and cultural rights. The adoption of the Optional Protocol would be a means for the implementation of a complaints mechanism. Guatemala had taken an active role in the Working Group on the drafting of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights and hoped that the draft of the Optional Protocol would see its day soon. Legal and juridical measures were necessary to the progressive realization of economic, social and cultural rights.
CHANG DONG-HEE (Republic of Korea) said that the Republic of Korea had long been committed to the promotion and protection of economic, social and cultural rights. In that vein, it had participated with great interest in the open-ended Working Group on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. Yet, the Republic of Korea was still among those countries that were not fully convinced of the feasibility of the Optional Protocol. A number of significant issues arising from the nature of economic, social and cultural rights had not yet been resolved. The Republic of Korea believed that more discussion was required to further clarify those issues. The Republic of Korea realized that at the last session of the Working Group many countries had expressed their wish to move ahead into the drafting of an Optional Protocol. The Republic of Korea respected their wishes, and was willing to participate in that process constructively, but hoped that further discussion would enlighten them on the question of whether the possible Optional Protocol was the best way to ensure the realization of economic, social and cultural rights.
TETSUYA KIMURA (Japan) said great importance was attached to economic, social and cultural rights, and those rights deserved the same attention as civil and political rights, and in this regard the Working Group was useful for considering what ways were effective for implementing economic, social and cultural rights. On the Working Group’s mandate, Japan was not fully convinced that an Optional Protocol was the best option for implementing those rights most effectively. However, it recognised the need to respect other positions and reach consensus.
Japan had no objection to extending the mandate of the Working Group. A working text should be used which contained the various approaches outlined in the chair’s analytical paper at the next session. It was premature for the Chairperson to prepare a single coherent text for the next session. Japan believed that consensus was being reached, and hoped the resolution would be adopted without a vote.
AJAJ MALHOTRA (India) said India attached great importance to economic, social and cultural rights and it supported the drafting and the adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. India, conscious of the need to advance the economic, social and cultural rights of its people, even before ratifying the Covenant, had made available the necessary infrastructure to its people. The people of India had been enjoying their economic, social and cultural rights in line with the guidelines set forth in the Covenant. India supported the debate on the need for the drafting of the Optional Protocol. India would also support the extension of the mandate of the Working Group of the drafting of the Optional Protocol.
ABDEL WAHAB AIDARA (Senegal) said that economic, social and cultural rights had not always enjoyed the same attention as civil and political rights. They were, so to speak, the poor relation of the human rights group. An international complaints instrument dedicated to economic, social and cultural rights would fill the historical gap in the system for the promotion and protection of human rights of the United Nations system. They had to do more. International cooperation and technical assistance had to be strengthened so as to buttress the efforts made by States in realizing those rights. In that spirit, Senegal was of the view that the elaboration of an Optional Protocol was the first response the Human Rights Council should take to support economic, social and cultural rights.
JESUS ENRIQUE G. GARCIA (Philippines) said the mandate of the Working Group should continue, and further discussions would help ensure that the concerns of parties to a possible Optional Protocol would be fully taken into account. Especial appreciation was given to delegations to express their views on this subject. The Working Group’s deliberations invited closer examination of the constraints and concerns expressed by delegations regarding the workability of an Optional Protocol.
However, at this stage, the Philippines believed that the consideration of a detailed working text addressing the concerns, observations, and possible approaches so far expressed by delegations, rather than a draft Optional Protocol, would be more helpful in advancing the deliberations.
ELIANA BERAUN ESCUDERO (Peru) said the radicalization of extreme poverty and other causes of poverty had prompted the international community to take further measures to tackle them. The visit to Peru by the Independent Expert on extreme poverty had helped the authorities to further take measures to support national efforts. The Government had been engaged in the effort to overcome the problem of the full realization of the economic, social and cultural rights of its people. Within the context of the promotion and protection of human rights, Peru had been pursuing a policy that would eradicate poverty through the implementation of economic, social and cultural rights. The drafting of the Optional Protocol and its adoption by States would give impetus to the progressive realization of economic, social and cultural rights.
GLAUDINE J. MTSHALI (South Africa) said that South Africa aligned itself with the statement made by Algeria on behalf of the African Group and commended the work of the Working Group to elaborate an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. Although States had not yet reached consensus on the content of the Optional Protocol, States appeared to agree that they should begin negotiations to elaborate such an instrument. For its part, South Africa supported the immediate start of negotiations on the drafting of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.
JEAN-DANIEL VIGNY (Switzerland) said it remained committed to the universality and interdependence of all human rights. A large number of States wished to begin the formal process of elaboration of the text for the Optional Protocol. It was an innovative and difficult topic. A number of options had been considered in the Working Group, and it was still difficult to give the Working Group a mandate for drafting. It was hoped that consensus could yet be found on a compromise formulation in broad terms, which could consist of entrusting the Chairperson with the drafting of an initial draft text which would reflect the views of the participants of the Working Group as to the extent and scope of the Optional Protocol.
OMAR KADIRI (Morocco) said Morocco was convinced that the set of rights under the two Covenants: Economic, Social and Cultural Rights, and Civil and Political Rights, had equal value and should not be seen as separate human rights. The discussion in the Working Group on the drafting of the Optional Protocol had manifested the wider interest of States in the realization of economic, social and cultural rights. As a basis for negotiation, an initial text of the draft should be ready for States. It was necessary that the text should attract consensus from all States in order that it be adopted.
ELCHIN AMIRBAYOV (Azerbaijan) said that the open-ended Working Group established with a view to considering options regarding the elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights represented the mechanism for an individual complaints procedure that had not yet been drawn up. The deliberations and whole process going on within the Working Group was remarkable and very pertinent as that set of rights, as opposed to civil and political rights, did not enjoy the same level of protection. That process deserved the adequate attention and continuation without gaps. The last session of the Working Group represented a further important step ahead, as an opportunity to focus discussions and to identify difficult issues. It was also crucial in terms of providing a comparison of existing mechanisms of individual complaints with elements that were supposed to be part of the draft Optional Protocol. The examination of various regional mechanisms and those outside the United Nations treaty bodies clearly indicated the value of a new mechanism.
HEDDA SAMSON (Netherlands) said the work done in the Working Group was appreciated, and the Netherlands had participated in that work in a spirit of cooperation, and had always supported international monitoring mechanisms, and firmly believed in the indivisibility of human rights, including economic, social and cultural rights. However, this did not mean that these rights could be realised in the same way. An Optional Protocol, granting the right to petition, was a far-reaching proposition. However, a large number of States were ready to move forward to start drafting.
The Netherlands supported the extension of the mandate in order to start drafting, and thought a draft should be begun, although this should include all the views that had been expressed by delegations.
JONNY SINAGA (Indonesia) said economic, social and cultural rights were a very fundamental part of human rights. Indonesia supported the work carried out by the Working Group on the drafting of the Optional Protocol to the Covenant. If the Optional Protocol was to be drafted, Indonesia wished to see the future document provide elements that addressed the root causes of the failure in achieving the provisions of the Covenant, including the prevalent poverty and foreign debt.
Given the broad scope of rights to be covered under the Covenant, Indonesia believed that the Working Group needed to carry out a more in-depth and exhaustive analysis of relevant issues, notably the capacity of different legal systems to deal with the extent of justiciablility of the Covenant rights.
VELIA DE PIRRO (United States) said that the United States could not support efforts to elaborate an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights for both procedural and substantive reasons. As a matter of process, there was no consensus within the Working Group that such a protocol would be desirable or what it should cover. That lack of consensus on fundamental issues had no doubt resulted in the notion that the Chair of the Working Group should draft the Optional Protocol rather than allowing States to negotiate the text. Such a method of work was problematic to say the least, set a poor precedent in the field, and called into question how the new body would engage the world community on global human rights issues.
As a substantive matter, the idea of elaborating an Optional Protocol modelled on other conventions was ill-advised as economic, social and cultural rights were not justiciable in the same way as other rights. The Committee could not be expected to have the capacity or experience to review the most fundamental resource allocation decisions of Governments. Those decisions, which were based on exceptionally complex facts and projections, involved everything from macroeconomic employment and monetary policy at the national level to the social welfare decisions of local governments. The Committee would be ill equipped to review those decisions, leaving it with almost limitless discretion to opine on the essential resource and regulatory decisions of nation States.
JOSE GAETANO DA COSTA PEREIRA (Portugal) said the Working Group had held rich and in-depth discussions about many aspects of economic, social and cultural rights, the benefits of a communications procedure, and elements to be included in an Optional Protocol. Despite the considerable progress that had been achieved by the Working Group, it was imperative that its current mandate be adjusted to the actual negotiation of a concrete text of a draft Optional Protocol, since the broad discussion of general elements was clearly exhausted.
Only by negotiating on the basis of a concrete text would participants be able to find compromise language which addressed the viewpoints of all. It was hoped that the Council would be able to adopt the resolution on the extension of the mandate by consensus.
CECILIA ROBLES CARTES (Spain) said the report of the Working Group was very exhaustive and comprehensive and it deserved appreciation. The normative development of standards was necessary to the implementation of human rights, including economic, social and cultural rights. Spain had sponsored the extension of the mandate of the Working Group. The Working Group should concentrate its work, highlighting the needs of the international community to implement those rights in an effective manner.
EDUARDO CHHUAILAF (Chile) said that from 1990 to date, Chile had endeavoured to combine economic development with social development, developing programmes to address issues such as health, education and employment, which had helped the country to reduce poverty and create employment. Chile had constantly supported the indivisibility, universality and interdependence of human rights. Economic, social and cultural rights should have a quasi-judicial review system at the international level, as was the case for civil and political rights. Within the context of the meetings of Working Group on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, they had been able to examine the question in all its various aspects. Chile aligned itself with the statement made by Brazil on behalf of the Group of Latin American and Caribbean States, which supported Portugal’s draft resolution to extend the mandate of the Working Group to elaborate such an Optional Protocol.
BART OUVRY (Belgium) said that the discussions in the Working Group had settled the question as to whether there should be a procedure for communications on economic, social and cultural rights, and a large number of delegations supported the idea. Discussions on justiciability had shown that the problems should be dealt with in the same way whether they were economic, social and cultural rights or civil and political rights. The practice of the Committees hitherto had already given practised solutions. National Parliaments, at the time of ratification, would be given a clear idea as to budgetary requirements.
The priority was the rights. The consideration of communications by the Committee would not only strengthen the protection of the holder of the rights, but also contribute to further understanding of the nature of the rights.
MOSTAFA ALAEI (Iran) said economic, social and cultural rights were indispensable to preserve the dignity of all human beings in all countries. Improving respect for economic, social and cultural rights was essential to ensuring the contribution of human rights to both development and peace. Iran had followed with interest the work of the Working Group to consider options regarding the elaboration of an Optional Protocol to the Covenant. Considerable progress had been made in clarifying various questions relating to an Optional Protocol to the treaty. The Working Group had fulfilled the mandate assigned to it by the Commission on Human Rights. Iran supported the extension of the Working Group’s mandate to elaborate further a negotiable draft.
CAROLINE MILLER (Australia) said that as a longstanding party to the International Covenant on Economic, Social and Cultural Rights, Australia fully supported the promotion and protection of economic, social and cultural rights. For the following three reasons, however, Australia continued to have concerns with the proposal to elaborate an Optional Protocol to the Covenant. First, Australia strongly believed that for the treaty bodies to be more efficient and effective, they had to deliver results. It was Australia’s experience that individual complaints mechanisms themselves did little to improve the situations of peoples in countries where some of the most egregious human rights abuses occurred.
Secondly, Australia firmly believed that the International Covenant on Economic, Social and Cultural Rights Committee already offered a constructive and valuable way to encourage and assist all States parties to meet their obligations under the Covenant. And, thirdly, discussion in the Working Group had shown that there were many and divided views on the scope and modus operandi of a possible new communications mechanism. To work through the numerous, detailed questions relating to an Optional Protocol would take significant resources and Australia was not convinced that such an exercise represented the best means of promoting and protecting economic, social and cultural rights. For those reasons, Australia would like to see the option of no Optional Protocol remain open for debate.
SANDRA RATIEN, of FIAN International, (speaking in a joint statement with International Federation of Human Rights Leagues; Centre on Housing Rights and Evictions; Franciscans International; International Commission of Jurists; and International Women's Rights Action Watch) said the NGO Coalition had actively participated in the last session of the Working Group, where increased momentum in favour of the adoption of an effective instrument for a better protection of economic, social and cultural rights was evident. The proposals according to which the Chair should prepare and present a draft Optional Protocol to the next session was supported. This draft should reflect the discussions and achievements of the three first years of the Working Group, and should serve as a basis for the drafting negotiations.
MELIK OZDEN, of Europe-Third World Centre, said the world had been affirmed that all human rights were indivisible. The rights from fear and want could only be realized with the enjoyment of economic, social and cultural and civil and political rights. The drafting and adoption of an Optional Protocol would strengthen the realization of economic, social and cultural rights. The mechanisms for the monitoring and follow-up to the implementation of the two Covenants were not fully achieved. Although the Covenant on Economic, Social and Cultural Rights was adopted 40 years ago, a complaints mechanism to that treaty had never been adopted. The position of the Working Group on the elaboration of the drafting of the Optional Protocol was not clear yet.
ZAHRA OUARDI, of Union de l'action feminine, said that given the importance of the promotion and protection of economic, social and cultural rights, and in view of the right of the individual to live in dignity and to obtain the financial resources to live a decent life, in Morocco measures had been taken to improve the environment of liberty and democracy and very important measures had been undertaken to improve the economic, social and cultural status of peoples, including the establishment of greater equality between men and women, in particular to have access to employment. Nevertheless, although those measures had strengthened economic, social and cultural rights, the economic and social situation in Morocco remained difficult. The rate of education for girls was low and unemployment among women was high.
HORACIO RAVENNA, of Permanent Assembly for Human Rights, said the extension and expansion of the mandate of the Working Group was firmly supported. Economic, social and cultural rights, together with civil and political rights, formed a normative body which was single and consistent, coherent, characterised by their interdependence, indivisibility and inter-relationship. There was a fictitious ranking of rights that were at the same level. There was no mechanism for reporting complaints, and this had given States a false idea regarding the mandatory nature of compliance with these rights. The mandate of the Working Group had expired, and there had been enough discussion. States were favourably disposed to moving forward, and the phase of drafting should begin.
CATARINA DE ALBUQUERQUE, Chairperson-Rapporteur of the Open-ended Working Group to Consider Options Regarding the Elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, recalled that conferences had been held in Mexico for the GRULAC countries and in Finland for the European countries pertaining to the elaboration of the Optional Protocol. In its work, the Working Group had drawn from the experience of the Committee on Economic, Social and Cultural Rights. It had also taken into consideration court cases in relation to economic, social and cultural rights. The Group had emphasized that the future protocol should guarantee the full implementation of economic, social and cultural rights.
In her view, the process of the work in the Working Group should continue. A climate of trust built in the Group was an asset that would facilitate the future elaboration of a consensus text. If the Council agreed to the extension of the mandate of the Working Group, the next session would take place in Geneva.
Report of the Working Group to Elaborate a Draft Legally Binding Normative Instrument for the Protection of All Persons from Enforced Disappearance
In the report of the Intersessional Open-ended Working Group to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearance (E/CN.4/2006/57), the Working Group undertook a complete review of the draft instrument and then transmitted it to the Commission which would have to take action. The draft instrument, whose text is available in the annex of the report, states, among other things, that no one shall be subjected to enforced disappearance; no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance; and each State Party should take appropriate measures to investigate acts of enforced disappearance and to bring those responsible to justice.
Introduction of the Report of the Working Group to Elaborate a Draft Legally Binding Instrument for the Protection of Persons from Enforced Disappearance
BERNARD KESSEDJIAN, Chairperson-Rapporteur of the Open-ended Working Group on a Draft Convention for the Protection of All Persons from Enforced Disappearance, presenting the report of the Working Group, said that the report was dedicated to Martha Vasquez, the Grandmother of the Plaza de Mayo, and to all victims of enforced disappearances. The basis for the work of the Working Group had been the Declaration adopted by the United Nations General Assembly in 1992, the work of the Sub-Commission of the Commission on Human Rights, the work of the Group of Experts on Enforced Disappearances, and the report of Professor Manfred Nowak. The text prohibited the practice of enforced disappearance. That practice was defined as a crime, and a crime against humanity when it was widespread or systematic. Perhaps the greatest innovation of the text was that it took account of preventive measures, in particular those relating to detention, prison registries and a ban on secret prisons. Those provisions recognized that enforced disappearances fed on gaps in the law and administrative regulations, and that legal detentions could degenerate if they were not sufficiently regulated or structured. The right of victims was also a subject of particular focus: for the disappeared themselves, their memory, and the restoration of their good name, but also for their families, with particular reference to their children, as enforced disappearances mean intolerable suffering by the families who lost their loved ones. Finally, following long discussions, they had established a new concept that was essential for memory and reparation: the right to know the truth. Enforced disappearance was a crime of lies and oblivion. It must be opposed by the truth and living memory. The concrete embodiment of that right was established by means of the right to information, to the freedom of information and to be informed.
The start of the Working Group’s discussion was the definition of enforced disappearances. The definition had hit the difficulty of what acts constituted the crime. The real problem posed was the perpetrators of the crime. Most members agreed that the perpetrator was the State, either directly or through complicity. Yet some States pointed to acts of groups, non-State actors, outside the control of States, such as terrorists. Finally, a provision was made for those groups and assigning responsibility to them, without derogating from the State the responsibility to protect.
Statements on the Report of the Working Group to Elaborate a Draft Legally Binding Instrument for the Protection of All Persons from Enforced Disappearance
ELISABETH ELLISON-KRAMER (Austria), speaking on behalf of the European Union, said the Working Group had concluded its work in September 2005, and had decided that it had finished its work. The Commission had been working on the issue of enforced disappearances since the beginning of the 1980s. Despite the creation of the Working Group in 1992, the phenomenon still persisted. It was not a crime of the past. It was not limited to a specific region.
The draft Convention represented a step forward for international human rights, and it defined the crime of enforced disappearances. It organised the fight against impunity of perpetrators, at the national and international levels, and described what preventive measures should be taken. The European Union called for the prompt adoption of the Convention by the Council, and its transfer to the General Assembly this autumn.
JUAN ANTONIO FERNANDEZ PALACIOS (Cuba) said Cuba had always co-sponsored resolutions on involuntary disappearances. The draft convention would complete the efforts of the international community to bring remedy to the widespread acts of disappearance. The principle of restitution and rehabilitation of victims should be confirmed by the provisions of the convention. The perpetrators of past acts of that abhorrent crime should be punished. The practices of enforced disappearances in other countries, such as in the case of the Latin American countries should be combated. Victims of disappearances should be rehabilitated and provided with moral support. Cuba firmly supported the draft convention and the Council should adopt it by consensus
RICARDO GONZALEZ ARENAS (Uruguay) said that Uruguay firmly supported the draft international Convention on Enforced Disappearances and the continued mandate of the Working Group. Uruguay had suffered in its own flesh the effects of that crime and the wounds were still open. Uruguay was convinced that the instrument represented a major step forward in the fight for the promotion and protection of human rights.
The draft text enshrined the right to truth, concerning the rights of disappeared persons and their families. It also provided for compensation and reparation to victims. Moreover, the adoption of the International Convention would be an acknowledgement by the international community that it owed something to the disappeared and to their families and the need to ensure that that terrible violation of human rights would never, ever occur again. Finally, Uruguay paid tribute to the work of the families of those who had suffered from this crime; without their work the Convention would not be possible.
ELIA SOSA (Mexico) said the draft Convention was a legal instrument of top-notch quality. It was the outcome of a fight within the human rights movement over the last decades, which had brought the human dimension to this room and others over the years. The criminalisation of the offence of forced disappearance, the right not to disappear, the right to truth, the recognition that it was a crime against humanity, the right to justice and reparation for victims were all included in the draft.
The request that the Convention be adopted by acclamation and conveyed for adoption this year to the General Assembly was reiterated. All delegations should unite behind this effort, which gave all their dignity.
For use of information media; not an official record
HRHRC06020E
Council Concludes Discussion on Right to Development
The Human Rights Council this morning discussed the reports of the Working Groups on the elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, and on the elaboration of a Convention for the Protection of All Persons from Enforced Disappearance.
Catarina de Albuquerque, Chairperson-Rapporteur of the Open-Ended Working Group to consider options regarding the elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, said an Optional Protocol would provide clear evidence that the Council considered that any human rights violation was intolerable, and demonstrate commitment to the indivisibility of all human rights, as well as the need to afford effective protection and remedies for individual victims.
She said that the situation was that of a sad reality where all too often breaches of economic, social and cultural rights were tolerated which, if they were committed against civil and political rights, would provoke expressions of horror and outrage and would lead to concerted calls for immediate remedial action.
Bernard Kessedjian, Chairperson-Rapporteur of the Open-ended Working Group on a Draft Convention for the Protection of All Persons from Enforced Disappearance, said the text of the draft convention prohibited the practice of enforced disappearance. That practice was defined as a crime, and a crime against humanity when it was widespread or systematic.
Mr. Kessedjian said perhaps the greatest innovation of the text was that it took account of preventive measures, in particular those relating to detention, prison registries and a ban on secret prisons. Those provisions recognized that enforced disappearances fed on gaps in the law and administrative regulations, and that legal detentions could degenerate if they were not sufficiently regulated or structured. The right of victims was also a subject of particular focus.
Also this morning, the Council concluded its debate on the right to development, hearing from Ibrahim Salama, Chairperson-Rapporteur of the Working Group on the Right to Development, who said that he had found that there was an increasing common ground on many fundamental issues on this topic. The divides that used to haunt the question of the right to development were narrowing. It was the one space in which human rights and economic groups came together organically and interacted. That was a paradigm shift that allowed them to inject the necessary coherence into the work of the United Nations system, where so many crosscutting issues did often complicate or cause duplication in their work.
The Philippines gave a statement on the right to development along with the representatives of the non-governmental organizations Europe-Third World Centre, Franciscans International, Indian Movement « Tupaj Amaru », and National Human Rights Commission of India.
Taking the floor on the report of the Working Group to consider options regarding the elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights were the representatives of Uruguay, Austria, on behalf of the European Union, United Kingdom, Argentina, Algeria, on behalf of the African Group, Brazil, on behalf of GRULAC, Brazil, Mexico, Russian Federation, Guatemala, Republic of Korea, Japan, India, Senegal, Philippines, Peru, South Africa, Switzerland, Morocco, Azerbaijan, Netherlands, Indonesia, United States, Portugal, Spain, Chile, Belgium, Iran and Australia.
The following non-governmental organizations also spoke: Centre on Housing Rights and Evictions (speaking in a joint statement with International Federation of Human Rights Leagues; Foodfirst Information and Action Network; Franciscans International; International Commission of Jurists; and International Women's Rights Action Watch), Europe-Third World Centre, Union d’Action Feminine, Permanent Assembly for Human Rights.
Speaking on the report of the Working Group on the elaboration of a draft legally binding convention on enforced disappearances were Austria, on behalf of the European Union, Cuba, Uruguay and Mexico.
When the Council reconvenes at noon, it will continue its debate on the elaboration of a convention on the protection of all persons from enforced disappearance. The Council is meeting non-stop today from 9 a.m. to 6 p.m.
Statements on the Report of the Working Group on the Right to Development
JESUS ENRIQUE G. GARCIA (Philippines) said development was a fundamental human right, and was inalienable and indivisible. It was a bridge between civil and political rights on one hand, and economic, social and cultural rights on the other. The right to development was not just about mainstreaming human rights into development, but also injecting development into the human rights discourse at all relevant levels. All parties and stakeholders should aim to fully realise this right in order to enhance multilateral development cooperation and contribute to sustained economic growth.
Developing countries had the primary responsibility for their development, but their efforts should be accompanied by a conducive international environment. This meant, among other things, that developing countries should have the requisite policy space in order to adopt and pursue development policies commensurate with their needs and priorities, particularly in the context of the right to development. The report of the Working Group set out practical recommendations which were the distillation of years of discussions and debate on how to give life to the right to development, and the Council should act favourably on these recommendations.
MELIK ÖZDEN, of Europe-Third World Centre, said that since the adoption of the Declaration on the Right to Development 20 years ago, no real progress had been made in that area; indeed, things had gotten worse. The Working Group established in 1998 had been lost in scholastic debates such as whether the right to development was a right or a right to the “process of development”. For some, development was synonymous with the right to prosperity. The Working Group had thus given in to making dissertations rather than in searching for solutions to the great challenges of our time. The Working Group had to give priority to international issues concerning the right to development and to undertake research and make proposals on, among others, making international cooperation effective, freeing sovereign countries from debt, and ensuring that international treaties and agreements supported the right to development and did not hinder it by forcing peoples to concede their sovereign rights.
YAO AGBETSE, of Franciscans International, said many steps had been taken since the 1986 Declaration on the Right to Development, and constructive discussions had led to some key substantive components. The new dynamic created by the inauguration of the Council should encourage all actors to move forward, mapping out a path leading to renewed political will, sustained commitment, energy and resource mobilisation for an effective realisation of the right to development. A new right to development vision should be centred on genuine dialogue, cooperation and accountability.
LAZARO PARY, of Indian Movement « Tupaj Amaru », said that the dominant economic thinking today was contrary to the right to development. Neo-liberal economists and experts of international financial institutions sought to justify that unequal model and its unjust effects. The impact of the International Monetary Fund and the World Bank since their establishment to date – those two main financial institutions of the United Nations system – had been to constantly impose on poor countries an ultraliberal model whose ramifications were still impacting the world. That thinking advocated liberalization of trade, price freezes, and unbridled privatisation of companies. The logic of globalization meant that external debt was a scourge of global dimensions.
JUSTICE A. S. ANAND, of National Commission of Human Rights of India, said human dignity was the spine of human rights, and was the very foundation on which human rights rested. Human development had come to be accepted as an enhancement of capabilities, widening of choices, and an expansion of freedoms. It was important to appreciate that development, which had to be equitable, and could brook no discrimination in the sharing of the benefits and in the activities producing the benefits between different people, irrespective of gender or caste, religion or geographical disparities. Poverty was the biggest violator of human rights, and its eradication was vital for development. It should not be treated as merely a development project.
IBRAHIM SALAMA, Chairperson-Rapporteur of the Working Group on the Right to Development, said that following yesterday’s discussions, he had found that there was an increasing common ground on many fundamental issues on this topic. The divides that used to haunt the question of the right to development were narrowing. Brazil, on behalf of the Group of Latin American and Caribbean States, had rightly pointed to the uniqueness of the forum of the Working Group on the Right to Development. It was the one space in which human rights and economic groups came together organically and interacted. That was a paradigm shift that allowed them to inject the necessary coherence into the work of the United Nations system, where so many cross-cutting issues did often complicate or cause duplication in their work.
Mr. Salama said that partnerships for development were necessarily of a very action-oriented nature, in fact mainstreaming the right to development into the work of other organizations. The Working Group encouraged the financial institutions to mainstream the right to development in the work of their organizations, such as the World Bank and the International Monetary Fund. That confirmed the relevance of the right to development, it confirmed its added value, and it confirmed its viability. There was a natural alliance between globalization and the right to development, the right to development was a bridge, a melting pot, an overarching right, which gave coherence to that phenomenon.
Report of the Working Group Established to Elaborate an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
The report of the Open-Ended Working Group to Consider Options Regarding the Elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (E/CN.4/2006/47), on its third session which was held from 6 to 17 February 2006, outlines the proceedings of the session. It summarizes the opening statements by the participants, and the discussion on the scope of rights subject to a procedure and the issue of reservations to an Optional Protocol. Other issues which were discussed were admissibility criteria, including standing; merits, friendly settlement, interim measures and views; the inquiry procedure; the inter-state procedure; international cooperation and assistance; domestic decisions on resource allocations; discussion on the inter-American system; relationships with existing procedures; costs of an Optional protocol; the impact of an Optional Protocol; and options regarding the elaboration of an Optional Protocol.
Introduction of Report of Working Group on Elaborating an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
CATARINA DE ALBUQUERQUE, Chairperson-Rapporteur of the Open-Ended Working Group to consider options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights, said a series of relevant activities had been organised which were relevant to the work of the Working Group. The Working Group had before it the Analytical Paper that contained Elements for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, and this document provided the basis for discussion. The Working Group concluded its debates by discussing options regarding the elaboration of an Optional Protocol.
The mandate of the Working Group on an Optional Protocol should now be evaluated. The situation was that of a sad reality where all too often breaches of economic, social and cultural rights were tolerated which, if they were committed against civil and political rights, would provoke expressions of horror and outrage and would lead to concerted calls for immediate remedial action. An optional protocol would provide clear evidence that the Council considered that any human rights violation was intolerable, and demonstrate commitment to the indivisibility of all human rights, as well as the need to afford effective protection and remedies for individual victims. It would also be consistent with the main objective of United Nations reform.
RICARDO GONZALEZ ARENAS (Uruguay) said that Uruguay was convinced that greater efforts to realize civil and political human rights would not effectively ensure the human rights of Uruguayans without creating conditions that ensured the sustainable development of human rights, with equity and social justice. As stated by the High Commissioner for Human Rights, poverty continued to be the greatest violation of human rights, and, in most cases, that situation was reproduced from generation to generation.
Uruguay was in favour of the adoption of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, and supported the continued mandate of the Working Group with a view to setting up such an instrument. International cooperation should continue to be the basic pillar that would help countries to realize those rights.
WOLFGANG PETRITSCH (Austria), speaking on behalf of the European Union, said the universality, indivisibility, interdependence and interrelatedness of all human rights were now firmly established principles. Full and equal emphasis should be given to the realisation of economic, social and cultural rights and civil and political rights, since all human rights derived from the inherent dignity of the human person. The sessions of the Working Group had provided an excellent opportunity to enhance understanding about the dimensions of economic, social and cultural rights, their justiciability, and ways to improve the implementation of the Covenant.
In view of the significant progress achieved in the Working Group, it was important that the Council now take this process forward taking into account all views on an Optional Protocol to ensure that the work could advance in the most effective way.
NICK THORNE (United Kingdom) said the proposal for an Optional Protocol was a far-reaching proposition. The United Kingdom had certain concerns about the shape and scope of such a protocol. In the spirit of consensus, it recognised that there was a body of States ready to step forward to draft such a protocol, and in this spirit suggested the Working Group should begin to draft such a Protocol which could be the basis of future negotiations. However, starting drafting on the basis of a single text which did not reflect differences in approach was not the appropriate way to proceed.
The proposed changes to the mandate could only be accepted if the text were to contain proposals on the various approaches that were already clear. The United Kingdom was flexible, and hoped that its reasonable requests could be met so that the work of the Working Group could move forward in a reasonable and clear manner.
SERGIO CERDA (Argentina) said that Argentina felt that the best way to put all categories of human rights on an equal footing was to adopt an Optional Protocol to establish a system of complaints for economic, social and cultural rights. Argentina would like to see the renewal of the mandate of the Working Group on an optional protocol to the International Covenant on Economic, Social and Cultural Rights, with the new mandate of drafting the Optional Protocol. A system of individual complaints that would cover all rights defined in the United Nations system would lead to easier access to the administration of justice and contribute to the realization of those rights that were linked closely to public policy, such as food, health and education. It was only the actual negotiation of the draft Optional Protocol that would allow for the accommodation of all delegations positions. That task could not be delayed.
IDRISS JAZAIRY (Algeria), speaking on behalf of the African Group, said the mandate of the Working Group should be extended for a further two years. Human rights were inalienable and indivisible, and economic, social and cultural rights were an integral part of the family of human rights, and all human rights should receive equal attention. The implementation and compliance with economic, social and cultural rights was no less important than those relating to civil and political rights. The international community had a key responsibility in matters pertaining to the implementation of economic, social and cultural rights and the linkage between these rights and the fight against poverty.
CLODOALDO HUGUENEY (Brazil), speaking on behalf of the Group of Latin American and Caribbean States (GRULAC), said that the International Covenant on Economic, Social and Cultural Rights had been drawn up at the same time as the International Covenant on Civil and Political Rights. However, civil and political rights already had a mechanism for individual complaints, whereas economic, social and cultural rights did not. The Working Group should begin negotiations on the elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. When the Working Group met in February 2006 it discussed several matters for inclusion in the Optional Protocol and those that would present challenges or difficulties. GRULAC was of the view that the only way forward was to continue negotiations on the basis of a draft Optional Protocol.
GRULAC was of the view that an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights would fill the gaps in respect of those rights that, though they might be partially covered by other instruments, were not fully covered by them. For that reason, GRULAC was not concerned by the question of duplication or overlapping of mandates. GRULAC supported the gradual development of economic, social and cultural rights, as set out in the International Covenant. It also supported the provision of technical assistance to countries to develop those rights. As all human rights were interrelated, the progressive realization of economic, social and cultural rights would serve to advance the realization of the right to development, as well as to ensure political stability and guarantee individual freedoms.
CLODOALDO HUGUENEY (Brazil) said economic, social and cultural rights were less protected in the International Covenant on Economic, Social and Cultural Rights, and the elaboration of an Optional Protocol, by allowing the presentation of individual complaints, would represent the redress of a historical imbalance between those rights and civil and political rights, and the possibility of a real enforcement for economic, social and cultural rights. Since it’s creation, the Working Group had dedicated itself to discussions on the possible aspects of an Optional Protocol.
Brazil favoured the comprehensive approach, covering all articles of the Covenant, in order to avoid the creation of a hierarchy between economic, social and cultural rights. International assistance and cooperation were particularly needed in the case of developing countries. An Optional Protocol would constitute a tool for strengthening cooperation and dialogue among and within States. Economic, social and cultural rights were indirectly focussed in other international instruments, but a comprehensive and detailed approach to these rights was exclusively reflected in the International Covenant.
JOSE A. GUEVARA (Mexico) said that the artificial distinction between economic, social and cultural rights and political and civil rights that had permeated the work of the United Nations since 1948 had now been left behind. All human rights were interlinked and indivisible. They had to be dealt with on an equal footing and given equal attention. However, the international community lacked a mechanism to enforce economic, social and cultural rights, and, in Mexico’s view, that represented an enormous debt to the victims of violations of those rights. The Working Group on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights had satisfactorily completed its mandate. After 40 years of indebtedness to victims of violations of those rights, now was the time to begin negotiation of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. For that reason, Mexico called on the Human Rights Council to extend the mandate of the Working Group. An Optional Protocol would be a major step forward in ensuring the promotion and protection of all human rights for all.
GALINA S. KHVAN (Russian Federation) said greater attention in the Council should be given to economic, social and cultural rights, but this would be difficult. The Council, together, and in a non-politicised manner, should consider the issue and move it forward. The Optional Protocol, aimed at reducing the gap in the international system of human rights, should be moved forward. The mandate of the Working Group should be extended for another two years, under various conditions.
All countries, in a balanced and fair manner, should begin consideration of the document. Countries should have room for manoeuvre to recognise the ability of the Committee on Economic, Social and Cultural Rights to consider complaints. The Optional Protocol should bring economic, social and cultural rights to the same level as civil and political rights.
CARLA MARIA RODRIGUEZ MANCIA (Guatemala) said human rights were inalienable, universal and indivisible. For that reason, the realization of economic, social and cultural rights could not be seen in isolation from the other categories of human rights. The two categories of rights, the economic, social and cultural rights and civil and political rights, should be implemented on an equal footing. It was necessary to establish a separate complaints mechanism for economic, social and cultural rights. The adoption of the Optional Protocol would be a means for the implementation of a complaints mechanism. Guatemala had taken an active role in the Working Group on the drafting of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights and hoped that the draft of the Optional Protocol would see its day soon. Legal and juridical measures were necessary to the progressive realization of economic, social and cultural rights.
CHANG DONG-HEE (Republic of Korea) said that the Republic of Korea had long been committed to the promotion and protection of economic, social and cultural rights. In that vein, it had participated with great interest in the open-ended Working Group on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. Yet, the Republic of Korea was still among those countries that were not fully convinced of the feasibility of the Optional Protocol. A number of significant issues arising from the nature of economic, social and cultural rights had not yet been resolved. The Republic of Korea believed that more discussion was required to further clarify those issues. The Republic of Korea realized that at the last session of the Working Group many countries had expressed their wish to move ahead into the drafting of an Optional Protocol. The Republic of Korea respected their wishes, and was willing to participate in that process constructively, but hoped that further discussion would enlighten them on the question of whether the possible Optional Protocol was the best way to ensure the realization of economic, social and cultural rights.
TETSUYA KIMURA (Japan) said great importance was attached to economic, social and cultural rights, and those rights deserved the same attention as civil and political rights, and in this regard the Working Group was useful for considering what ways were effective for implementing economic, social and cultural rights. On the Working Group’s mandate, Japan was not fully convinced that an Optional Protocol was the best option for implementing those rights most effectively. However, it recognised the need to respect other positions and reach consensus.
Japan had no objection to extending the mandate of the Working Group. A working text should be used which contained the various approaches outlined in the chair’s analytical paper at the next session. It was premature for the Chairperson to prepare a single coherent text for the next session. Japan believed that consensus was being reached, and hoped the resolution would be adopted without a vote.
AJAJ MALHOTRA (India) said India attached great importance to economic, social and cultural rights and it supported the drafting and the adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. India, conscious of the need to advance the economic, social and cultural rights of its people, even before ratifying the Covenant, had made available the necessary infrastructure to its people. The people of India had been enjoying their economic, social and cultural rights in line with the guidelines set forth in the Covenant. India supported the debate on the need for the drafting of the Optional Protocol. India would also support the extension of the mandate of the Working Group of the drafting of the Optional Protocol.
ABDEL WAHAB AIDARA (Senegal) said that economic, social and cultural rights had not always enjoyed the same attention as civil and political rights. They were, so to speak, the poor relation of the human rights group. An international complaints instrument dedicated to economic, social and cultural rights would fill the historical gap in the system for the promotion and protection of human rights of the United Nations system. They had to do more. International cooperation and technical assistance had to be strengthened so as to buttress the efforts made by States in realizing those rights. In that spirit, Senegal was of the view that the elaboration of an Optional Protocol was the first response the Human Rights Council should take to support economic, social and cultural rights.
JESUS ENRIQUE G. GARCIA (Philippines) said the mandate of the Working Group should continue, and further discussions would help ensure that the concerns of parties to a possible Optional Protocol would be fully taken into account. Especial appreciation was given to delegations to express their views on this subject. The Working Group’s deliberations invited closer examination of the constraints and concerns expressed by delegations regarding the workability of an Optional Protocol.
However, at this stage, the Philippines believed that the consideration of a detailed working text addressing the concerns, observations, and possible approaches so far expressed by delegations, rather than a draft Optional Protocol, would be more helpful in advancing the deliberations.
ELIANA BERAUN ESCUDERO (Peru) said the radicalization of extreme poverty and other causes of poverty had prompted the international community to take further measures to tackle them. The visit to Peru by the Independent Expert on extreme poverty had helped the authorities to further take measures to support national efforts. The Government had been engaged in the effort to overcome the problem of the full realization of the economic, social and cultural rights of its people. Within the context of the promotion and protection of human rights, Peru had been pursuing a policy that would eradicate poverty through the implementation of economic, social and cultural rights. The drafting of the Optional Protocol and its adoption by States would give impetus to the progressive realization of economic, social and cultural rights.
GLAUDINE J. MTSHALI (South Africa) said that South Africa aligned itself with the statement made by Algeria on behalf of the African Group and commended the work of the Working Group to elaborate an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. Although States had not yet reached consensus on the content of the Optional Protocol, States appeared to agree that they should begin negotiations to elaborate such an instrument. For its part, South Africa supported the immediate start of negotiations on the drafting of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.
JEAN-DANIEL VIGNY (Switzerland) said it remained committed to the universality and interdependence of all human rights. A large number of States wished to begin the formal process of elaboration of the text for the Optional Protocol. It was an innovative and difficult topic. A number of options had been considered in the Working Group, and it was still difficult to give the Working Group a mandate for drafting. It was hoped that consensus could yet be found on a compromise formulation in broad terms, which could consist of entrusting the Chairperson with the drafting of an initial draft text which would reflect the views of the participants of the Working Group as to the extent and scope of the Optional Protocol.
OMAR KADIRI (Morocco) said Morocco was convinced that the set of rights under the two Covenants: Economic, Social and Cultural Rights, and Civil and Political Rights, had equal value and should not be seen as separate human rights. The discussion in the Working Group on the drafting of the Optional Protocol had manifested the wider interest of States in the realization of economic, social and cultural rights. As a basis for negotiation, an initial text of the draft should be ready for States. It was necessary that the text should attract consensus from all States in order that it be adopted.
ELCHIN AMIRBAYOV (Azerbaijan) said that the open-ended Working Group established with a view to considering options regarding the elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights represented the mechanism for an individual complaints procedure that had not yet been drawn up. The deliberations and whole process going on within the Working Group was remarkable and very pertinent as that set of rights, as opposed to civil and political rights, did not enjoy the same level of protection. That process deserved the adequate attention and continuation without gaps. The last session of the Working Group represented a further important step ahead, as an opportunity to focus discussions and to identify difficult issues. It was also crucial in terms of providing a comparison of existing mechanisms of individual complaints with elements that were supposed to be part of the draft Optional Protocol. The examination of various regional mechanisms and those outside the United Nations treaty bodies clearly indicated the value of a new mechanism.
HEDDA SAMSON (Netherlands) said the work done in the Working Group was appreciated, and the Netherlands had participated in that work in a spirit of cooperation, and had always supported international monitoring mechanisms, and firmly believed in the indivisibility of human rights, including economic, social and cultural rights. However, this did not mean that these rights could be realised in the same way. An Optional Protocol, granting the right to petition, was a far-reaching proposition. However, a large number of States were ready to move forward to start drafting.
The Netherlands supported the extension of the mandate in order to start drafting, and thought a draft should be begun, although this should include all the views that had been expressed by delegations.
JONNY SINAGA (Indonesia) said economic, social and cultural rights were a very fundamental part of human rights. Indonesia supported the work carried out by the Working Group on the drafting of the Optional Protocol to the Covenant. If the Optional Protocol was to be drafted, Indonesia wished to see the future document provide elements that addressed the root causes of the failure in achieving the provisions of the Covenant, including the prevalent poverty and foreign debt.
Given the broad scope of rights to be covered under the Covenant, Indonesia believed that the Working Group needed to carry out a more in-depth and exhaustive analysis of relevant issues, notably the capacity of different legal systems to deal with the extent of justiciablility of the Covenant rights.
VELIA DE PIRRO (United States) said that the United States could not support efforts to elaborate an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights for both procedural and substantive reasons. As a matter of process, there was no consensus within the Working Group that such a protocol would be desirable or what it should cover. That lack of consensus on fundamental issues had no doubt resulted in the notion that the Chair of the Working Group should draft the Optional Protocol rather than allowing States to negotiate the text. Such a method of work was problematic to say the least, set a poor precedent in the field, and called into question how the new body would engage the world community on global human rights issues.
As a substantive matter, the idea of elaborating an Optional Protocol modelled on other conventions was ill-advised as economic, social and cultural rights were not justiciable in the same way as other rights. The Committee could not be expected to have the capacity or experience to review the most fundamental resource allocation decisions of Governments. Those decisions, which were based on exceptionally complex facts and projections, involved everything from macroeconomic employment and monetary policy at the national level to the social welfare decisions of local governments. The Committee would be ill equipped to review those decisions, leaving it with almost limitless discretion to opine on the essential resource and regulatory decisions of nation States.
JOSE GAETANO DA COSTA PEREIRA (Portugal) said the Working Group had held rich and in-depth discussions about many aspects of economic, social and cultural rights, the benefits of a communications procedure, and elements to be included in an Optional Protocol. Despite the considerable progress that had been achieved by the Working Group, it was imperative that its current mandate be adjusted to the actual negotiation of a concrete text of a draft Optional Protocol, since the broad discussion of general elements was clearly exhausted.
Only by negotiating on the basis of a concrete text would participants be able to find compromise language which addressed the viewpoints of all. It was hoped that the Council would be able to adopt the resolution on the extension of the mandate by consensus.
CECILIA ROBLES CARTES (Spain) said the report of the Working Group was very exhaustive and comprehensive and it deserved appreciation. The normative development of standards was necessary to the implementation of human rights, including economic, social and cultural rights. Spain had sponsored the extension of the mandate of the Working Group. The Working Group should concentrate its work, highlighting the needs of the international community to implement those rights in an effective manner.
EDUARDO CHHUAILAF (Chile) said that from 1990 to date, Chile had endeavoured to combine economic development with social development, developing programmes to address issues such as health, education and employment, which had helped the country to reduce poverty and create employment. Chile had constantly supported the indivisibility, universality and interdependence of human rights. Economic, social and cultural rights should have a quasi-judicial review system at the international level, as was the case for civil and political rights. Within the context of the meetings of Working Group on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, they had been able to examine the question in all its various aspects. Chile aligned itself with the statement made by Brazil on behalf of the Group of Latin American and Caribbean States, which supported Portugal’s draft resolution to extend the mandate of the Working Group to elaborate such an Optional Protocol.
BART OUVRY (Belgium) said that the discussions in the Working Group had settled the question as to whether there should be a procedure for communications on economic, social and cultural rights, and a large number of delegations supported the idea. Discussions on justiciability had shown that the problems should be dealt with in the same way whether they were economic, social and cultural rights or civil and political rights. The practice of the Committees hitherto had already given practised solutions. National Parliaments, at the time of ratification, would be given a clear idea as to budgetary requirements.
The priority was the rights. The consideration of communications by the Committee would not only strengthen the protection of the holder of the rights, but also contribute to further understanding of the nature of the rights.
MOSTAFA ALAEI (Iran) said economic, social and cultural rights were indispensable to preserve the dignity of all human beings in all countries. Improving respect for economic, social and cultural rights was essential to ensuring the contribution of human rights to both development and peace. Iran had followed with interest the work of the Working Group to consider options regarding the elaboration of an Optional Protocol to the Covenant. Considerable progress had been made in clarifying various questions relating to an Optional Protocol to the treaty. The Working Group had fulfilled the mandate assigned to it by the Commission on Human Rights. Iran supported the extension of the Working Group’s mandate to elaborate further a negotiable draft.
CAROLINE MILLER (Australia) said that as a longstanding party to the International Covenant on Economic, Social and Cultural Rights, Australia fully supported the promotion and protection of economic, social and cultural rights. For the following three reasons, however, Australia continued to have concerns with the proposal to elaborate an Optional Protocol to the Covenant. First, Australia strongly believed that for the treaty bodies to be more efficient and effective, they had to deliver results. It was Australia’s experience that individual complaints mechanisms themselves did little to improve the situations of peoples in countries where some of the most egregious human rights abuses occurred.
Secondly, Australia firmly believed that the International Covenant on Economic, Social and Cultural Rights Committee already offered a constructive and valuable way to encourage and assist all States parties to meet their obligations under the Covenant. And, thirdly, discussion in the Working Group had shown that there were many and divided views on the scope and modus operandi of a possible new communications mechanism. To work through the numerous, detailed questions relating to an Optional Protocol would take significant resources and Australia was not convinced that such an exercise represented the best means of promoting and protecting economic, social and cultural rights. For those reasons, Australia would like to see the option of no Optional Protocol remain open for debate.
SANDRA RATIEN, of FIAN International, (speaking in a joint statement with International Federation of Human Rights Leagues; Centre on Housing Rights and Evictions; Franciscans International; International Commission of Jurists; and International Women's Rights Action Watch) said the NGO Coalition had actively participated in the last session of the Working Group, where increased momentum in favour of the adoption of an effective instrument for a better protection of economic, social and cultural rights was evident. The proposals according to which the Chair should prepare and present a draft Optional Protocol to the next session was supported. This draft should reflect the discussions and achievements of the three first years of the Working Group, and should serve as a basis for the drafting negotiations.
MELIK OZDEN, of Europe-Third World Centre, said the world had been affirmed that all human rights were indivisible. The rights from fear and want could only be realized with the enjoyment of economic, social and cultural and civil and political rights. The drafting and adoption of an Optional Protocol would strengthen the realization of economic, social and cultural rights. The mechanisms for the monitoring and follow-up to the implementation of the two Covenants were not fully achieved. Although the Covenant on Economic, Social and Cultural Rights was adopted 40 years ago, a complaints mechanism to that treaty had never been adopted. The position of the Working Group on the elaboration of the drafting of the Optional Protocol was not clear yet.
ZAHRA OUARDI, of Union de l'action feminine, said that given the importance of the promotion and protection of economic, social and cultural rights, and in view of the right of the individual to live in dignity and to obtain the financial resources to live a decent life, in Morocco measures had been taken to improve the environment of liberty and democracy and very important measures had been undertaken to improve the economic, social and cultural status of peoples, including the establishment of greater equality between men and women, in particular to have access to employment. Nevertheless, although those measures had strengthened economic, social and cultural rights, the economic and social situation in Morocco remained difficult. The rate of education for girls was low and unemployment among women was high.
HORACIO RAVENNA, of Permanent Assembly for Human Rights, said the extension and expansion of the mandate of the Working Group was firmly supported. Economic, social and cultural rights, together with civil and political rights, formed a normative body which was single and consistent, coherent, characterised by their interdependence, indivisibility and inter-relationship. There was a fictitious ranking of rights that were at the same level. There was no mechanism for reporting complaints, and this had given States a false idea regarding the mandatory nature of compliance with these rights. The mandate of the Working Group had expired, and there had been enough discussion. States were favourably disposed to moving forward, and the phase of drafting should begin.
CATARINA DE ALBUQUERQUE, Chairperson-Rapporteur of the Open-ended Working Group to Consider Options Regarding the Elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, recalled that conferences had been held in Mexico for the GRULAC countries and in Finland for the European countries pertaining to the elaboration of the Optional Protocol. In its work, the Working Group had drawn from the experience of the Committee on Economic, Social and Cultural Rights. It had also taken into consideration court cases in relation to economic, social and cultural rights. The Group had emphasized that the future protocol should guarantee the full implementation of economic, social and cultural rights.
In her view, the process of the work in the Working Group should continue. A climate of trust built in the Group was an asset that would facilitate the future elaboration of a consensus text. If the Council agreed to the extension of the mandate of the Working Group, the next session would take place in Geneva.
Report of the Working Group to Elaborate a Draft Legally Binding Normative Instrument for the Protection of All Persons from Enforced Disappearance
In the report of the Intersessional Open-ended Working Group to elaborate a draft legally binding normative instrument for the protection of all persons from enforced disappearance (E/CN.4/2006/57), the Working Group undertook a complete review of the draft instrument and then transmitted it to the Commission which would have to take action. The draft instrument, whose text is available in the annex of the report, states, among other things, that no one shall be subjected to enforced disappearance; no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance; and each State Party should take appropriate measures to investigate acts of enforced disappearance and to bring those responsible to justice.
Introduction of the Report of the Working Group to Elaborate a Draft Legally Binding Instrument for the Protection of Persons from Enforced Disappearance
BERNARD KESSEDJIAN, Chairperson-Rapporteur of the Open-ended Working Group on a Draft Convention for the Protection of All Persons from Enforced Disappearance, presenting the report of the Working Group, said that the report was dedicated to Martha Vasquez, the Grandmother of the Plaza de Mayo, and to all victims of enforced disappearances. The basis for the work of the Working Group had been the Declaration adopted by the United Nations General Assembly in 1992, the work of the Sub-Commission of the Commission on Human Rights, the work of the Group of Experts on Enforced Disappearances, and the report of Professor Manfred Nowak. The text prohibited the practice of enforced disappearance. That practice was defined as a crime, and a crime against humanity when it was widespread or systematic. Perhaps the greatest innovation of the text was that it took account of preventive measures, in particular those relating to detention, prison registries and a ban on secret prisons. Those provisions recognized that enforced disappearances fed on gaps in the law and administrative regulations, and that legal detentions could degenerate if they were not sufficiently regulated or structured. The right of victims was also a subject of particular focus: for the disappeared themselves, their memory, and the restoration of their good name, but also for their families, with particular reference to their children, as enforced disappearances mean intolerable suffering by the families who lost their loved ones. Finally, following long discussions, they had established a new concept that was essential for memory and reparation: the right to know the truth. Enforced disappearance was a crime of lies and oblivion. It must be opposed by the truth and living memory. The concrete embodiment of that right was established by means of the right to information, to the freedom of information and to be informed.
The start of the Working Group’s discussion was the definition of enforced disappearances. The definition had hit the difficulty of what acts constituted the crime. The real problem posed was the perpetrators of the crime. Most members agreed that the perpetrator was the State, either directly or through complicity. Yet some States pointed to acts of groups, non-State actors, outside the control of States, such as terrorists. Finally, a provision was made for those groups and assigning responsibility to them, without derogating from the State the responsibility to protect.
Statements on the Report of the Working Group to Elaborate a Draft Legally Binding Instrument for the Protection of All Persons from Enforced Disappearance
ELISABETH ELLISON-KRAMER (Austria), speaking on behalf of the European Union, said the Working Group had concluded its work in September 2005, and had decided that it had finished its work. The Commission had been working on the issue of enforced disappearances since the beginning of the 1980s. Despite the creation of the Working Group in 1992, the phenomenon still persisted. It was not a crime of the past. It was not limited to a specific region.
The draft Convention represented a step forward for international human rights, and it defined the crime of enforced disappearances. It organised the fight against impunity of perpetrators, at the national and international levels, and described what preventive measures should be taken. The European Union called for the prompt adoption of the Convention by the Council, and its transfer to the General Assembly this autumn.
JUAN ANTONIO FERNANDEZ PALACIOS (Cuba) said Cuba had always co-sponsored resolutions on involuntary disappearances. The draft convention would complete the efforts of the international community to bring remedy to the widespread acts of disappearance. The principle of restitution and rehabilitation of victims should be confirmed by the provisions of the convention. The perpetrators of past acts of that abhorrent crime should be punished. The practices of enforced disappearances in other countries, such as in the case of the Latin American countries should be combated. Victims of disappearances should be rehabilitated and provided with moral support. Cuba firmly supported the draft convention and the Council should adopt it by consensus
RICARDO GONZALEZ ARENAS (Uruguay) said that Uruguay firmly supported the draft international Convention on Enforced Disappearances and the continued mandate of the Working Group. Uruguay had suffered in its own flesh the effects of that crime and the wounds were still open. Uruguay was convinced that the instrument represented a major step forward in the fight for the promotion and protection of human rights.
The draft text enshrined the right to truth, concerning the rights of disappeared persons and their families. It also provided for compensation and reparation to victims. Moreover, the adoption of the International Convention would be an acknowledgement by the international community that it owed something to the disappeared and to their families and the need to ensure that that terrible violation of human rights would never, ever occur again. Finally, Uruguay paid tribute to the work of the families of those who had suffered from this crime; without their work the Convention would not be possible.
ELIA SOSA (Mexico) said the draft Convention was a legal instrument of top-notch quality. It was the outcome of a fight within the human rights movement over the last decades, which had brought the human dimension to this room and others over the years. The criminalisation of the offence of forced disappearance, the right not to disappear, the right to truth, the recognition that it was a crime against humanity, the right to justice and reparation for victims were all included in the draft.
The request that the Convention be adopted by acclamation and conveyed for adoption this year to the General Assembly was reiterated. All delegations should unite behind this effort, which gave all their dignity.
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For use of information media; not an official record
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