Comments to the Draft optional Protocol to the ICESCR

Human Rights Commission

Open-ended working group on an optional protocol to the International Covenant on Economic, Social and Cultural Rights
Geneva, 23 February-5 March 2004
Joint Written Statement by CETIM and AAJ.


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A. The capacity of the States to submit communications

1. In paragraph 14 of the document (E/CN.4/1997/105), the Committee reports that it has decided not to recommend the inclusion of an inter-State complaints procedure within the proposed optional protocol.

2. Excluding this procedure without valid reasons is counter to the approach taken in the International Covenant on Civil and Political Rights (articles 14 et seq.), the Convention on the Elimination of All Forms of Racial Discrimination (articles 11 et seq.) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (article 21). The argument that such a procedure is little used, especially by the ILO, is not altogether convincing, because States regularly participate under the ILO procedure of the Committee on the Application of Standards (one of the Committees of the ILO Conference), in the analysis of reports of other States and in the drafting of recommendations regarding States which do not comply with the rules in force, which explains that other procedures provided for in the ILO Constitution are exceptionally used.

3. Here, our’s main concern is that excluding States as active subjects from an instrument of international law makes legal nonsense, because States are, by definition, inevitable subjects of international law.

4. In view of the specific nature of the rights contained in the case of the International Covenant on Economic, Social and Cultural Rights, the capacity of States to submit communications should extend not only to complaints of violations committed in another State, but also to violations committed in their own territory by another State or by an international or transnational corporation whose headquarters are in another State.

5. Therefore, a provision should be included in the draft concerning communications submitted by the State, in line with the relevant provisions of the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial Discrimination and the Convention against Torture, with an extension of the capacity of States, as suggested.

B. The requirement that the complainant must be subject to the jurisdiction of the State against which the complaint was brought (article 1 of the draft)

6. Article 1 admits communications only from individuals or groups subject to the jurisdiction of the State against which the complaint was brought. Surprisingly, in document E/CN.4/1997/105, no justification is provided for this restrictive provision. The issue was discussed by the Committee and the AAJ and CETIM, for its part, made several statements which provided solid reasons to eliminate such restriction.

7. The Chairman of the Committee, who was in favour of a restrictive provision, supported his position as follows. “The Chairman confirmed that article 1, paragraph 1, was based on the Optional Protocol to the International Covenant on Civil and Political Rights. But the words “subject to its jurisdiction” were used deliberately, because, in the absence of a restrictive clause of that type, there could be a situation where a State lodged a complaint against an action committed by another State. A State might, for example, consider that another State’s “imperialism” violated the economic and social rights of its own population. It therefore seemed necessary to introduce a restriction, without thereby limiting the exercise of the rights that the Covenant recognized for nationals of States parties.”

8. We hold that such restriction is anachronistic, in view of recent legal developments. Nowadays, international law doctrine and jurisprudence acknowledge that individuals are subjects of international law. Therefore, it is a general principle that individuals should be admitted, under the conditions established by law, to bring their complaints before relevant international bodies if their rights are violated by any State, legal entity or individual, and not only by the State with jurisdiction over the complainant.

9. Regional human rights instruments have integrated this principle within their texts. None of those instruments contains the requirement that the petitioner must be under the jurisdiction of the State party denounced.

10. Article 2 of the ICESCR is different from article 2 of the International Covenant on Civil and Political Rights (ICCPR), because the rights protected by each one are different. In fact, article 2 of the ICCPR restricts the obligation of States to respect and guarantee civil and political rights “to all individuals within its territory and subject to its jurisdiction”. Article 2 of the ICESCR does not contain such restriction and otherwise states that each State party … “undertakes to take steps, individually and through international assistance and cooperation …” (emphasis added)

11. The text of article 1 of the draft optional protocol is literally the same as article 1 of the first Optional Protocol to the ICCPR. The latter derives from article 2 of the ICCPR. In the first Optional Protocol, the reference to the territory was omitted, so a State party recognizes the competence of the Committee to “receive and consider communications from individuals subject to its jurisdiction” without further clarification concerning the kind of jurisdiction (territorial, personal competence or both).

12. The text of article 1 of the first Optional Protocol to the ICCPR has caused considerable implementation problems for the Human Rights Committee precisely because it restricts the right to allege the commission of violations by a State to “individuals subject to the jurisdiction” of that State. In the exercise of its quasi-jurisdictional functions, the Committee has found that a literal application of article 2 of the Covenant and article 1 of the Optional Protocol would remove protection from certain individuals turning to the Committee to complain of serious civil and political rights violations. That was the case, for instance, with Uruguayan citizens abducted by members of the Uruguayan armed forces in Argentina and Brazil and secretly moved to Uruguay during the 1970s. The State denounced by the victims was Uruguay, yet the violations had been committed outside Uruguayan jurisdiction. The Human Rights Committee has rightly pointed out that it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.

13. To arrive at that conclusion, the Committee referred to the paragraph in article 1 of the Protocol, disregarding the text of article 2 of the Covenant and stating that the Committee could receive and consider communications from individuals subject to the jurisdiction of the State concerned, thus interpreting jurisdiction as being personal and not territorial. The Committee also based its resolution on article 5, paragraph 1, which prescribes “Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant”. This provision contains a rule for the interpretation of the Covenant.

14. In the Uruguayan case, one of the victims had dual nationality: Italian by blood and Uruguayan by birth. She had been abducted in Brazil by members of the Uruguayan armed forces. Had this person been only Italian, could she have been deprived of protection on the grounds that personal jurisdiction could not be invoked? Surely not, according to the general principle contained in article 5 of the Covenant.

15. A member of the Human Rights Committee submitted an individual opinion concerning the above-mentioned decisions. He said that in principle, the scope of application of the Covenant was not susceptible to being extended by reference to article 5, a provision designed to cover instances where formal rules under the Covenant seemed to legitimize actions which substantially ran counter to its purposes and general spirit. Thus, Governments may never use the limitation clauses to such an extent that the very substance of those rights and freedoms would be annihilated and individuals are legally barred from availing themselves of the same rights and freedoms with a view to overthrowing the regime of the rule of law which constitutes the basic philosophy of the Covenant. In relation to article 1 of the Protocol, the same member narrowed the interpretation of that article by the Committee. In his view, the words “within its territory” could not be interpreted as granting State parties unfettered discretionary power to carry out wilful and deliberate attacks against the freedom and personal integrity of their citizens living abroad.

16. We disagree with that member’s interpretation of article 5 of the Covenant and article 1 of the first Optional Protocol. In effect, article 5, paragraph 1, of the Covenant contains two different and well-defined provisions linked by the word “or”. The first provision prohibits any State, group or person to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized in the Covenant. The second provision prohibits limiting those rights and freedoms to a greater extent than is provided for in the Covenant, for example through abusively restrictive regulations. Notwithstanding the opinion of the above-mentioned member, States are not only barred from using abusive limitation clauses: a general prohibition concerning violation of rights and freedoms protected by the Covenant is contained in this provision. Thus, article 5, paragraph 1, of the ICCPR is a basic rule of interpretation for the Covenant and the Committee has rightly referred to it in both decisions.

17. In the same individual opinion, the member of the Committee stated that article 1 of the first Optional Protocol should be interpreted as prohibiting States from violating the human rights of their nationals outside national territory. That reasoning could lead to the absurd conclusion that the Covenant does not prohibit States from violating the human rights of foreigners outside of their territory. The words “subject to its jurisdiction” admits only one interpretation: it establishes the obligation for the State to guarantee the enjoyment of civil and political rights within its own territorial and personal jurisdiction. It may not be interpreted as establishing limits to the universal obligation of any State to respect such rights.

18. In 1993, the Human Rights Committee referred again to this question in relation to the former Yugoslavia. During the consideration of the report of the Federal Republic of Yugoslavia (Serbia and Montenegro), a member of the Committee said that State parties were responsible for the observance of human rights when their representatives were involved and when their acts affected human beings, even outside their national territory. It should be noted that in the statement the member said “human beings”, not “nationals”.

19. In 1995, the Human Rights Committee stated, in its comments to the report submitted to it by the Government of the United States of America, that the Committee did not share the opinion expressed by the Government that under no circumstances could the Covenant have an extraterritorial effect. It also stated that such opinion was against the interpretation consistently made by the Committee on that matter, which indicated that in special circumstances, individuals could be subject to the jurisdiction of a State party ratione materiae, even if they were outside the territory of such State.

20. As already noted, the obligation to respect civil and political rights is a universal one and when this obligation is not respected, the international community has a legitimate right to intervene through its relevant organs. How, then, could victims be deprived of the right of recourse to the appropriate bodies because they are not “subjects” of the State committing the violation?

21. On the other hand, the International Covenant on Economic, Social and Cultural Rights, which should serve as the basis for the draft optional protocol, does not make the effects of the rights it enumerates conditional either upon territory or upon jurisdiction. The reason is that economic, social and cultural rights, such as they are enshrined in international instruments, and especially in the Covenant, imply a universal passive obligation to respect them, as is also true of civil and political rights, but their specific nature also creates a universal active obligation to guarantee them.

22. The fundamental international human rights instruments have taken into consideration the specific nature of economic, social and cultural rights. The Universal Declaration of Human Rights mentions international cooperation in relation to economic, social and cultural rights (article 22). The Charter of the United Nations, in its Article 1, paragraph 3, mentions as one of the purposes of the United Nations “To achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting respect for human rights and for fundamental freedoms”. The International Covenant on Economic, Social and Cultural Rights establishes, in its article 2, that “Each State … undertakes to take steps, individually and through international assistance and cooperation …”.

23. Presently, globalization of the economy has created an interrelation and an interdependence among all the countries of the globe in such a way that economic and social phenomena in a country or group of countries may have important repercussions on another country or group of countries. This globalization of the economy is focusing increasingly on what is known as “the rights of solidarity” in the context of economic, social and cultural rights, e.g. the universal active obligation to guarantee those rights through international cooperation. It also highlights the responsibility of third parties in violations of those rights, which is implied in their ignoring the universal passive obligation of respect for human rights, for example, the imposition of structural adjustment programmes by international financial institutions or the economic, financial and trade policies of certain States or transnational corporations.

24. That was not to imply any release from responsibility of the State in which those violations took place, but rather to introduce the concept of the joint responsibility of the authorities of the State and of the international organizations and/or other States that contributed by their policies to such violations. The victims, either under the jurisdiction of the State responsible for the violation or not, should be given the right to denounce the facts and the State responsible for an action or an omission violating the human rights of the victim.

25. Therefore, it is suggested to withdraw from the text of article 1 of the draft, the words “subject to its jurisdiction”.

C. Who is authorized to submit communications? (article 2 of the draft)

26. Article 2 of the draft optional protocol indicates that “Any individual or group claiming to be a victim of a violation … or any individual or group acting on behalf of such claimant(s) …” may submit communications. Thus, NGOs or other groups which are not acting with the knowledge and agreement of the victim(s) will not be allowed to initiate proceedings.

27. The reasons provided to justify this limitation in document E/CN.4/1997/105 are not serious. They rather aim at instilling in the reader of the report apprehension vis-à-vis the catastrophic consequences anticipated by the author in the case that NGOs are authorized to submit communications.

28. In fact, authorizing NGOs to submit communications does not open the door to “complaints which sought to anticipate violations” or to “speculative complaints”, as claimed in the report of the Committee (paragraph 22). The consideration of such communications is prevented by the requirements for admission and the procedure of admissibility of the communications. If NGOs were given access to the procedure, it would not imply “to eliminate all requirements such as ‘consultative status’, links to the country concerned, or special knowledge or particular competence in relation to the issues raised” (ibid.). On the contrary, all such requirements exist in other international instruments and should also exist in this optional protocol. The report displays arguments against a proposal that was never supported by NGOs, so that it can easily take the opposite approach as a more convenient alternative. The same happens with the assertion in the report that to open the procedure to complaints from NGOs would “come at the price of opening up the procedure to a vast number of complaints which do not have to satisfy any minimum requirement …”, since the procedure has requirements for admission that will stop any “ill-informed or gratuitous complaint” (ibid).

29. The capacity of NGOs to submit communications or complaints is incorporated into several international instruments: in article 44 of the American Convention on Human Rights, which is referred to in paragraph 6 of article 19 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador”); in the African Charter on Human and Peoples’ Rights (article 56); in the procedures of the International Labour Organization (Committee of Experts on the Application of Conventions and Recommendations, Committee on Freedom of Association, etc.), within which national trade unions can submit complaints concerning situations in their respective countries, and the international organizations can do so with respect to any country; in the rules for the submission of communications to UNESCO; in the Additional Protocol to the European Social Charter, which provides for a system of collective complaints adopted by the Committee of Ministers on 22 June 1995 and opened for signature on 3 November 1995. This Protocol authorizes complaints alleging unsatisfactory application of the Charter from: (a) international organizations of employers and trade unions; (b) other international NGOs with consultative status; (c) representative national organizations of employers and workers in the impugned State; (d) other NGOs which the State has recognized as having that right (articles 1 and 2 of the Protocol).

30. There is a tendency, even in United Nations treaty bodies, to concede a more active role to non-governmental organizations.

31. It is often the case that victims of violations of human rights are among the most vulnerable groups of the population which frequently do not have access to the information on international procedures and have no way to report before international bodies. Especially in such cases, the exercise of the actio popularis by NGOs, e.g. the right to submit communications even without a specific mandate, is essential.

32. Excluding NGOs from the parties with a capacity to submit complaints under the optional protocol to the ICESCR would be a retrograde step given the current dominant international trend and would ignore the fact that fundamental human rights are peremptory rules (jus cogens) and universally applicable (erga omnes).

33. Therefore, it is suggested to amend article 2, paragraph 1, of the draft optional protocol as follows: replace the words “the State party concerned” by “a State party” and add at the end of the sentence, a new sentence reading “Non-governmental organizations legally recognized in one or more States as well as those with consultative status with the United Nations will be also allowed to submit written communications”.

D. Non-fulfilment of the reporting obligations

34. We disagree with the approach taken by the Committee to exclude from the optional protocol the reporting obligation contained in part IV of the Covenant (see E/CN.4/1997/105, para. 24). In AAJ and CETIM’s opinion, the non-fulfilment of the reporting obligation should be the object of a special procedure involving the examination of the situation and an analysis of the consequences of such omission for the human rights of a population or for sections or groups of such population. In addition, the existing practice of the committees of several international instruments to consider the situation in a country even in the absence of a report from the Government should be included as a provision in the optional protocol, together with the procedure to be followed in such cases.

E. Article 3 of the draft: exhaustion of domestic remedies and proceedings under another procedure of international investigation or settlement

35. We suggest the following amendment to paragraph 3 (a) of article 3 (ibid., para. 33): at the end of the sentence, add “This shall not be the rule where the application of the remedies is unreasonably prolonged (see article 5, paragraph 2 (b), of the first Optional Protocol to the ICCPR), where the victim(s) cannot have access to them, and where the remedies are inefficient.

36. In relation to paragraph 3 (b) of article 3, we suggest the following amendment: delete the words “by or on behalf of the alleged victim” and add “of a similar nature” after “procedure of international investigation or settlement”. This is suggested because certain international procedures of a different nature, such as a number of humanitarian procedures, do not prevent a communication from being admitted.

F. The obligation to redress and compensate for damage (article 8 of the draft)

37. Article 8 needs more precise language. While the word “remedy” in English may involve compensation, that is not the case in French and Spanish. We suggest that the text of article 8 (ibid., para. 49) be amended as follows: “… the State party take specific measures to stop the violation of human rights, to compensate the victim(s) for damage and to prevent its recurrence”.

G. Binding nature of the protocol (article 14 of the draft)

38. The optional protocol is a binding instrument not only for the States parties within their own territory (pacta sunt servanda), but also in relation to the international community, according to international law in force at present (Universal Declaration of Human Rights, the two Covenants and other international instruments considered as jus cogens).

39. Therefore, we suggest to eliminate from the text of article 14 (ibid., para. 58) the words “in respect of all territories subject to its jurisdiction”.

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