The proposed Optional Protocol to the Covenant on Economic, Social and Cultural Rights: A blueprint for UN Human Rights treaty body reform - Without amending the existing treaties

Human Rights Law Review

Volumn 6, Issue 1, 2006, Pages 131-142

  Scheinin, Martin ^a  

^a ÅBO AKADEMI UNIVERSITY   (Finland)

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EID: 33645537367     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngi035     Document Type: Article

References (38)

1. The first part of the paper is based on a presentation given at an expert seminar on the process towards an optional protocol to the Covenant on Economic, Social and Cultural Rights, convened by the French Government and the International Commission of Jurists in Nantes, France, 5-7 September 2005.
2. UNTS 3.
3. Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Note by the Secretary-General, 18 December 1996, E/CN.4/1997/105.
4. See the reports by the independent expert, Status of the International Covenants on Human Rights: 12 February 2002, E/CN.4/2002/57; 13 January 2003, E/CN.4/2003/53; and 3 April 2003, E/CN.4/2003/53/Corr.1.
5. See Commission on Human Rights resolutions 2003/18, 22 April 2003, E/ CN.4/RES/2003/18; and 2004/29, 19 April 2004, E/CN.4/2004/29.
6. The Working Group held its first session in 2004, See its Report to the Commission on Human Rights, 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 on its First Session, 15 March 2004, E/CN.4/2004/44. It was then mandated by the Commission (Commission Resolution 2004/29) to hold two further sessions to 'consider options regarding the elaboration of an optional protocol'.
7. See the Report of the Open-Ended Working Group to Consider Options Regarding the Elaboration of an Optional Protocol, 10 February 2005, E/ CN.4.2005/52. The second and final session under this mandate is scheduled for February 2006. Following this, at its 2006 session the Commission may - though this is far from certain - decide to give the Working Group a drafting mandate', which would authorise it to prepare a text of the Protocol for consideration for adoption by states.
8. For further information, see the website of the NGO Coalition for an Optional Protocol to the ICESCR at: http://www.escrprotocolnow.org/.
9. UNTS 171. The HRC is established pursuant to Article 28, ICCPR.
10. 999 UNTS 302.
11. Sub-paragraph (a) of ECOSOC resolution 1985/17, supra n. 4, reads: 'The Working Group established by Economic and Social Council decision 1978/ 10 and modified by Council decision 1981/158 and resolution 1982/33 shall be renamed "Committee on Economic, Social and Cultural Rights"'.
12. See, for instance, plan of action submitted by the United Nations High Commissioner for Human Rights, 26 May 2005, A/59/2005/Add.3.
13. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, GA Res. 45/158,18 December 1990, A/RES/45/158; II IHRR 269 (2004). This has its own newly established Committee.
14. See Draft Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, available at: http://www.un.org/esa/socdev/enable/ documents/chairtext.DOC. Notably, this draft by the Chair does not include any provisions on international monitoring bodies, although the discussion seems to be leaning towards the creation of a new treaty body.
15. See Article 26 of a draft International Convention for the Protection of all Persons from Enforced Disappearance, proposing to establish a Committee on Enforced Disappearances, 23 September 2005, E/CN.4/2005/ WG.22/WP.1/REV.4.
16. A complaint invoking one of the substantive provisions of the ICESCR together with the minority rights clause in Article 27, ICCPR would be one of the most likely combinations to arise in a complaint addressing both Covenants.
17. Article 39, ICCPR, requiring the presence of 12 members for a quorum, is one of the parameters to be taken into account in a solution based on chambers. For instance, it could be a requirement that all chamber decisions are confirmed by a plenary sitting of the Committee.
18. 3 June 2005, available at: http://www.ohchr.org/english/bodies/docs/ RatificationStatus.pdf.
19. At the moment the HRC includes a national of the United States.
20. GA Res. 217 A (III), 10 December 1948, A/810 at 71.
21. In practice, there is currently one such member.
22. 1155 UNTS 331.
23. One may note that although there is no similar clause in the ICCPR-OP, no legal problems have arisen.
24. Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine, ETS No. 164.
25. Article 29, ibid.
26. Of the seven principal human rights treaties, the following include such a clause: Article 27, International Convention on the Elimination of All Forms of Racial Discrimination 1965; Article 29, Convention on the Elimination of All Forms of Discrimination against Women 1979; Article 30, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984; and Article 92, International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990.
27. 1465 UNTS 85.
28. See supra n. 12.
29. As to such 'doubts', reference is made to two opinions by the UN Legal Counsel/Assistant Secretary-General for Legal Affairs, issued in response to proposals made during the respective drafting processes, that either the UNCAT or the Convention against Disappearances would entrust the existing HRC with the function of also monitoring the new treaty. On both occasions (1981 and 2003, respectively), the response was negative but without any real reasoning. The latter response [on file with the author], in fact, merely quotes the 1981 opinion, which reads: 'In my view, this proposal presents serious legal obstacles and if adopted its legal validity could be challenged on the ground that it constitutes a modification of the terms of the Covenant which has established the Human Rights Committee and defined its terms of reference. Such modification can only be effected by the procedure specified in Article 51 of the Covenant.'
30. Including pre-sessional working groups and the chambers of the Committee on the Rights of the Child.
31. Notably, Article 28, ICCPR requires from HRC members 'recognized competence in the field of human rights' (not civil and political rights').
32. 660 UNTS 195.
33. 1249 UNTS 13.
34. This provision already includes the principle of overlapping membership: 'States Parties shall bear in mind the usefulness of nominating persons who are also members of the Human Rights Committee established under the International Covenant on Civil and Political Rights and who are willing to serve on the Committee against Torture.'
35. 1577 UNTS 3.
36. The possibility of reducing the annual number of meeting weeks (with interpretation and conference services) will depend on what will happen to pre-sessional working groups and to what extent the integration of the sessions will enable a shortening of at least some of the sessions. As the current annual number of meeting weeks is 65, a rough estimate is that a reduction of 10-15 per cent would be possible.
37. A rough estimate is that the integrated sessions of treaty bodies with overlapping membership would require 246 trips by members, compared with the current number of 276 trips, meaning a reduction by 11 per cent.
38. See, for example, Article 35, ICCPR.