Obligations of 'international assistance and cooperation' in an optional protocol to the international covenant on economic, social and cultural rights

Netherlands Quarterly of Human Rights

Volumn 24, Issue 2, 2006, Pages 271-303

  Sepúlveda, Magdalena ^a  

^a International Council on Human Rights Policy   (Switzerland)

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EID: 34547645663     PISSN: 01693441     EISSN: None     Source Type: Journal    
DOI: 10.1177/016934410602400204     Document Type: Article

References (114)

1. For example, it formally discussed the issue during three 'days of general discussion' on the topic (13th, 14th and 15th sessions) and four separate reports were prepared at the Committee's request by Mr. Philip Alston (then chairperson of the Committee), providing the basis for extensive discussions within the Committee. See UN Docs E/1996/22 and E/ 1997/22.
2. UN Doc. E/CN.4/1997/105.
3. For example, the Vienna Declaration and Programme of Action (1993) 'encourage[d] the Commission on Human Rights, in cooperation with the Committee on Economic, Social and Cultural Rights, to continue the examination of optional protocols to the International Covenant on Economic, Social and Cultural Rights' (Part II), para. 75). This commitment was reiterated by the Commission on Human Rights which, in paragraph 6 of its Resolution 1994/20, took note of the 'steps taken by the Committee (...) for the drafting of an optional protocol (...) granting the right of individuals or groups to submit communications concerning non-comphance with the Covenant, and invite[d] the Committee to report thereon to the Commission.' However, the steps taken by States supporting the drafting of an OP to the ICESCR have been few.
4. Resolution 2002/24
5. Resolution 2004/29. Endorsed by Economic and Social Council decision 2004/256.
6. The reports of the sessions are included in the following UN Docs: E/ CN.4/2004/44 (first session); E/CN.4/2005/52 (second session); and E/ CN.4/2006/47 (third session). They are available at: www.ohchr.org/ english/issues/escr/document.htm (last visited March 2006).
7. See, for example, the opening statement of the representative of Ethiopia and Morocco, speaking on behalf of the African Group in the second and third sessions respectively (UN Docs E/CN.4/2005/52, para. 9 and E/CN.4/2006/47, para. 7). In addition, see interventions of delegates of Ethiopia and Egypt (e.g. UN Doc. E/CN.4/2005/52, paras 74 and 77) and Argentina, Belgium, China, Finland and Mexico (UN Doc. E/CN.4/2006/47, para. 79).
8. Countries that belong to the 'Western Europe and Others Regional Group' (WEOG).
9. During the second session this position was held by representatives of the United Kingdom, the Czech Republic, Canada, France and Portugal (see UN Doc. E/CN.4/2005/52, para.76). During the third session this position was held only by the representative of Canada (UN Doc. E/CN.4/2006/47, para. 82).
10. UN Doc. E/CN.4/2006/47, para. 125.
11. Several States have proposed that the Chairperson be entrusted with the preparation of a first draft of an OP, UN Doc. E/CN.4/2006/47, para. 126.
12. The second session of the OEWG concluded by inviting the Chairperson-Rapporteur to draft 'a paper with elements for an optional protocol in order to facilitate a more focused discussion at the third session of the working group' (UN Doc. E/CN.4/2005/52, para. 109). At the request of the delegations this paper included examination of international cooperation and assistance. However, in what seems understandable political decision (due to the controversy generated by the topic), in her analytical paper (UN Doc. E/CN.4/2006/WG.23/2, paras 48-56) the Chairperson-Rapporteur did not directly tackle the nature, scope or content of Article 2(1) ICESCR, but rather limited to examine Articles 22 and 23 of the Covenant. By doing so, the analytical paper has left intact the original uncertainty about supervision of Article 2(1) ICESCR by the supervisory procedures to be established under an OP to the Covenant.
13. General Comment No. 3, para. 13.
14. See, for example, the Declaration on Principles of International Law concerning Friendly Relations and Co-operation Among States in accordance with the Charter of United Nations (GA Resolution 2625 (XXV)) and the Declaration on the Right to Development, adopted by GA Resolution 41/128 of 4 December 1986.
15. See the Limburg Principles Nos 29-34 and the commentaries by Dankwa, E.V.O. and Flinterman, Cees, 'Commentary by the rapporteurs on the nature and scope of States parties' obligations', Human Rights Quarterly, Vol. 9, No. 2, 1987, pp. 140-141.
16. 'Revised general guidelines regarding the form and contents of reports to be submitted by states parties under articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights', UN Doc. E/C.12/1991/1 (17 June 1991).
17. With regard to Article 8 (the right to join and form trade unions and the right to strike), the Committee does not require States to indicate the role of international assistance as it seems that international assistance does not play any role in the full realisation of these rights; idem.
18. The wording of this provision is slightly different from Article 2(1) ICESCR as it refers only to international co-operation. However, as has been noted, at the international level the term international co-operation encompasses the notion of assistance. For further development on Article 4 CRC, see Detrick, Sharon, A commentary on the United Nations Convention on the Rights of the Child, Martinus Nijhoff Publishers, The Hague, 1999, pp. 109-114.
19. Prior to each Committee session, some members of the Committee meet in order to identify in advance the questions which will constitute the principal focus of discussion with State representatives during the constructive dialogue. This 'pre-sessional working group' prepares a list of issues to be taken into consideration when examining the State party report. The List of Issues is sent to the respective government through diplomatic channels. In order to facilitate the dialogue, the Committee requests the State party to provide answers to its List of Issues in writing and in advance of the session, in time for them to be translated into the working languages of the Committee. See UN Doc. CRC/ C/33, para. 12.
20. See, for example, List of Issues: Trinidad and Tobago, UN Doc. CRC/C/Q/ TRI/1 (13 June 1997).
21. See, for example, Concluding Observations Australia, UN Doc. CRC/C/15/ Add.79, para. 25.
22. In both cases, the wording refers to 'international co-operation' without including 'assistance'.
23. General Comment No. 3, para. 14. (emphasis added).
24. In this general comment, the Committee refers only to an obligation to 'co-operate' but does not mention any duty to 'assist'. This apparent omission is explained by one commentator who points out that 'although there is clearly an obligation to co-operate internationally, it is not dear whether this means that wealthy States Parties are obliged to provide aid to assist in the realisation of the rights in other countries'. See Craven, Matthew, 'The International Covenant on Economic, Social and Cultural Rights', in: Hanski, R. and Suksi, M. (eds), [I An introduction to the international protection of human rights: a textbook: second revised edition I], Institutute for Human Rights, Åbo Akademi University, Åbo, 1999, p. 108.
25. See, for example, General Comment No. 14, para. 45;
26. and General Comment No. 15, paras 37 and 38.
27. See also General Comment No. 17, paras 36-38;
28. and General Comment No. 18, paras 29-30.
29. 'Substantive issues arising in the implementation of the International Covenant on Economic, Social and Cultural Rights: Poverty and the International Covenant on Economic, Social And Cultural Rights', statement adopted by the Committee on Economic, Social and Cultural Rights on 4 May 2001, UN Doc. E/C.12/2001/10 (footnote omitted). As a Committee member notes, the core obligations and the obligations relating to international assistance and co-operation 'should be seen as two halves of a package'. Mr. Hunt in: UN Doc. E/C.12/2000/SR.10, para. 27.
30. General Comment No.14, para. 45;
31. General Comment No. 15, para. 38;
32. and General Comment No. 17, para. 31.
33. See General Comment No. 14, para. 45: the same view was repeated in an statement adopted by the Committee on 4 May 2001 relating to 'Poverty and the International Covenant on Economic, Social and Cultural Rights' (UN Doc. E/C.12/2001/10) in which the Conunittee noted: 'In General Comment No. 14, the Committee emphasizes that it is particularly incumbent on all those in a position to assist, to provide "international assistance and cooperation, especially economic and technical" to enable developing countries to fulfil their core obligations. In short, core obligations give rise to national responsibilities for all States and international responsibilities for developed States, as well as others that are "in a position to assist... (para. 16, footnote omitted). The same view has been held in some Concluding Observations, see, for example, Concluding Observations Ireland, UN Doc. E/2003/22, para. 151 and Concluding Observations United Kingdom, UN Doc. E/2003/22, para. 229. Although in their context it seems clear that by 'other entities' the Committee is referring to international financial institutions, it is necessary for the Committee to clarify its understanding on this point.
34. This should not be taken to imply that obligations of international financial institutions are not relevant but rather a choice of focus for this article. For an analysis on how to make international financial institutions accountable under a complaint procedure, see, for example, Kunnemann, R., 'Extraterritorial application of the International Covenant on Economic, Social and Cultural Rights', in: Coomans, F. and Kamminga, M. (eds), Extraterritorial application of human rights treaties, Intersentia, Antwerp, 2004, pp. 212-216.
35. The same view has been taken by several scholars and experts. Noteworthy in this regard are the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (principles 29-34). This principles were adopted by a group of distinguished experts in international law, convened by the International Commission of Jurists, the Faculty of Law of the University of Limburg (Maastricht, the Netherlands) and the Urban Morgan Institute for Human Rights, University of Cincinnati (Ohio, United States of America), who met in Maastricht on 2-6 June 1986. The reference to international obligations can also be found in the reports of Special Rapporteurs, see, for example, the report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living Mr. Miloon Kothari, UN Doc. E/CNA/2002/59, p. 17.
36. The Committee itself applies the 'tripartite typology' to analyse international obligations. See, for example, General Comment No. 14, para. 39.
37. In addition, see Concluding Observations Cameroon, UN Doc. E/2000/22, para. 352;
38. Concluding Observations Argentina, UN Doc. E/2000/22, para. 276;
39. and Concluding Observations Bulgaria, UN Doc. E/2000/22, para. 236.
40. The use of the tripartite typology in regard to international obligations has been included inter alia in: Sepúlveda, Magdalena, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights, Hart/Intersentia, Antwerp, 2002;
41. and Skogly, S., 'The obligation of international assistance and co-operation in the International Covenant on Economic, Social and Cultural Rights', in: Bergsmo, Morten (ed), Human Rights and Criminal Justice for the Downtrodden: Essays in Honour of Asbjorn Eide, Kluwer Law International, The Hague, 2003. See also the report of the Special Rapporteur on the right to food, Jean Ziegler (e.g. UN Doc. E/CN.4/2005/ 47) and the work of some non-governmental organisations such as FIAN International (www.fian.org)
42. The possibility that a human rights treaty imposes obligations towards people living outside its own territory has been recognised by several human rights supervisory bodies. For example, the European Court of Human Rights in the case of Loizidou vs Turkey held: 'In addition, the responsibility of Contracting Parties can be involved because of acts of their authorities, whether performed within or outside national boundaries, which produce effects outside their own territory'. Although it is beyond the scope of the present work to further examine the issue of extraterritorial obligations, I agree with several academic writers which state that this is a legitimate interpretation of the Covenant. See e.g., Skogly, Sigrun, Beyond National Borders: State's Human Rights Obligations in International Cooperation, Intersentia, Antwerp, 2006;
43. and Coomans and Kamminga (eds), op.cit. (note 29).
44. Alston, Philip and Quinn, Gerard, 'The nature and scope of States parties' obligations under the International Covenant on Economic, Social and Cultural Rights', Human Rights Quarterly, Vol. 9, No. 2, 1987, p. 191 (emphasis added). This article was prepared by the authors for the symposium on the implementation of the International Covenant on Economic, Social and Cultural Rights held in Maastricht in June 1986. The participants at this symposium agreed on the Limburg Principles. It should be noted that the Committee was established in 1985, but held its first session in March 1987.
45. The Committee has referred to the international duty to respect in regard to the right to housing (General Comment No. 2, para. 6 and General Comment No. 4, para. 19); right to food (General Comment No. 12, para. 36), right to health (General Comment No. 14, para. 39) and right to water (General Comment No. 15, para. 31)). In the later two General Comments, the Committee goes beyond its General Comment on the right to food where it uses weaker language and indicates that 'States Parties should take steps to respect the enjoyment of the right to food in other countries'. General Comment No. 12, para. 36.
46. In addition, see Draft Guidelines: A Human Rights Approach to Poverty Reduction Strategies, prepared by the Office of the High Commissioner for Human Rights, 10 September 2002, para. 216, available at: www.unhchr.ch/development/povertyfinal.html (last visited March 2006).
47. See, for example, Concluding Observations Italy, UN Doc. E/2001/22, para. 126; Concluding Observations Belgium, UN Doc. E/2001/22, para. 493; Concluding Observations Japan, UN Doc. E/C.12/1/Add.67, para. 37; and Concluding Observations Germany, UN Doc. E7C.12/1/Add.68, para. 31. For a more detailed analysis on the Committee's approach on this point, see Sepúlveda, op.cit. (note 31), pp. 218-222 and 237-238.
48. General Comment No. 2, para. 6; and General Comment No. 4, para. 19.
49. General Comment No. 15, para. 31.
50. Ibidem, para. 32.
51. See, for example, General Comment No. 8, 'Substantive issues arising in the implementation of the International Covenant on Economic, Social And Cultural Rights: Poverty and the International Covenant on Economic, Social And Cultural Rights', statement adopted by the Committee on Economic, Social and Cultural Rights on 4 May 2001, UN Doc. E/C.12/2001/ 10, para. 12, Declaration on the Right to Development, adopted by General Assembly Resolution 41/128 of 4 December 1986.
52. See, for example, 'Voluntary Guidelines to support the progressive realization of the right to adequate food in the context of national food security' (hereafter 'Voluntary Guidelines'), No. 16.
53. See, for example, Sachs, J. et al., Ending Africa's Poverty Trap, UN Millennium Project, Brookings Papers on Economic Activity, Washington, 2004, pp. 117-216, at p.162.
54. See General Comment No. 14, para. 39; and General Comment No. 18, para. 30.
55. General Comment No. 15, para. 33; and General Comment No. 14, para. 39.
56. For a comprehensive analysis of the responsibility of trasnational corporations see Jägers, Nicola, Corporate Human Rights Obligations: in search of accountability, Hart/Intersentia, 2002, pp. 165ff. See also De Schutter, Olivier, 'Transnational Corporations as Instruments of Human Development', in: Alston, P. and Robinson, M. (eds), Human Rights and Development. Towards Mutual Reinforcement, Oxford University Press, Oxford, 2005, pp. 403-446.
57. For example, General Comment No. 18, para. 30;
58. General Comment No. 15, para. 35;
59. and General Comment No. 11, para. 56.
60. General Comment No. 15, para. 35. Again, although the Committee has stressed this obligation only in regard to the right to water, this is undoubtedly an obligation in regard to all substantive rights.
61. Concluding Observations Iceland, UN Doc. E/C.12/1/Add.89, para. 20.
62. For example, in General Comment No. 14 the Committee states that 'States Parties have an obligation to ensure that their actions as members of international organisations take due account of the right to health'. The Committee has stressed this duty in several Concluding Observations, such as Concluding Observations Germany, UN Doc. E/2002/22, para. 673;
63. and Concluding Observations Sweden, UN Doc. E/2002/22, para. 731.
64. This point is also stressed in The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, SIM Special No. 20, SIM, Utrecht, 1998, guideline No. 19: 'The obligations of States to protect economic, social and cultural rights extend also to their participation in international organizations, where they act collectively. It is particularly important for States to use their influence to ensure that violations do not result from the programmes and policies of the organizations of which they are members. It is crucial for the elimination of violations of economic, social and cultural rights for international organizations, including international financial institutions, to correct their policies and practices so that they do not result in deprivation of economic, social and cultural rights. Member States of such organizations, individually or through the governing bodies, as well as the secretariat and nongovernmental organizations should encourage and generalize the trend of several such organizations to revise their policies and programmes to take into account issues of economic, social and cultural rights, especially when these policies and programmes are implemented in countries that lack the resources to resist the pressure brought by international institutions on their decision-making affecting economic, social and cultural rights' (pp. 29-30).
65. In the case of 'developing States', the Committee has requested that they take measures to protect vulnerable groups from adverse affects that they may have suffered due to measures adopted as a consequence of an agreement with an international financial institution. See, for example, Concluding Observations Philippines, UN Doc. E/1996/22, para. 124;
66. Bulgaria, UN Doc. E/2000/22, paras 221 and 236;
67. Argentina, UN Doc. E/2000/22, paras 258 and 276;
68. and Cameroon, UN Doc. E/2000/22, para. 352.
69. Concluding Observations Germany, UN Doc. E/2002/22, para. 673.
70. See also Concluding Observations France, UN Doc. E/2002/22, para. 881.
71. Concluding Observations Italy, UN Doc. E/2000/22, para. 126.
72. Concluding Observations Belgium, UN Doc. E/2001/22, para. 493.
73. 'The Committee urges the State party to increase its efforts to provide international assistance to developing countries and to establish a time frame within which the internationally accepted goal of 0.7 percent of GNP set by the United Nations will be achieved. The Committee also encourages the State party, as a member of international financial institutions, in particular IMF and the World Bank, to do all it can to ensure that the policies and decisions of those institutions are in conformity with the obligations of States parties to the Covenant, in particular the obligations contained in article 2, paragraph 1, 11, 15, 22 and 23 concerning international assistance and co-operation.' Concluding Observations Japan, UN Doc. E/2002/22, para. 614.
74. General Comment No. 2, para. 6. Although the Committee has referred to this duty only in regard to United Nations agencies involved in the promotion of economic, social and cultural rights, it is fully appropriate to extend it to States implementing development assistance.
75. See, for example, Concluding Observations Slovakia, UN Doc. E/C.12/1/ Add. 81, para. 21.
76. Along this line of argument, see the 'human rights impact assessment' required of Germany by the Committee after examining its fourth periodic report, UN Doc. E/2002/22, para. 674.
77. General Comment No. 11: 'A State party cannot escape the unequivocal obligation to adopt a plan of action on the grounds that the necessary resources are not available. If the obligation could be avoided in this way, there would be no justification for the unique requirement contained in article 14 of the Covenant which applies, almost by definition, to situations characterized by inadequate financial resources. By the same token, and for the same reason, the reference to "international assistance and cooperation" in article 2, paragraph 1 and to "international action" in article 23 of the Covenant are of particular relevance in this situation. Where a State party is clearly lacking in the financial resources and/or expertise required to "work out and adopt" a detailed plan, the international community has a clear obligation to assist.'
78. Ibidem, para. 11.
79. General Comment No. 18, para 29. Unfortunately, the Committee's language is somewhat weak. Although it directly refer to the States' 'commitments' it then uses the word 'should'.
80. See, for example, General Comment No. 14, para. 39.
81. UN Doc. A/CONF.198/11, para. 42.
82. It is interesting to note that for some State representatives, the 0.7 percent GNP target is considered an obligation. For example, then Canadian Minister of International Cooperation, Aileen Carroll, repeatedly stated that Canada is obliged to meet the international standard, to devote 0.7 percent of gross domestic product to foreign development assistance. See 'Embassy: Diplomacy This Week', Canada's foreign policy newsweekly, 23 February 2005, p. 3, available at: www.embassymag.ca/pdf/2005/022305_em.pdf (last visited March 2006).
83. See, for example, Concluding Observations Finland, UN Doc. E/2001/22, para. 449;
84. and Concluding Observations Belgium, UN Doc. E/2001/22, para. 492.
85. Concluding Observations Japan, UN Doc. E/C.12/1/Add.67, para. 37.
86. The same wording has been used for example in regard to Germany (UN Doc. E/2002/22, para. 675), however in other cases the Committee merely 'recommends' increasing official development assistance to 0.7 percent GNP.
87. See, for example, Concluding Observations Iceland, UN Doc. E/2004/22, para. 231.
88. See, for example, Concluding Observations France, UN Doc. E/C.12/1/ Add.72, paras 14 and 24.
89. See, for example, Concluding Observations Sweden, UN Doc. E/C.12/1/ Add.70, para. 7.
90. UN Doc. E/2004/22, para. 67.
91. Concluding Observations Germany, UN Doc. E/2002/22, para. 675.
92. UN Doc. A/CONF.198/11, paras 39-46.
93. General Comment No. 14, para. 39.
94. Ibidem, para. 40.
95. General Comment No. 12, para. 38;
96. and General Comment No. 14, para. 40. 'States Parties have a joint and individual responsibility, in accordance with the Charter of the United Nations and relevant resolutions of the United Nations General Assembly and of the World Health Assembly, to cooperate in providing disaster relief and humanitarian assistance in times of emergency, including assistance to refugees and internally displaced persons. Each State should contribute to this task to the maximum of its capacities. Priority in the provision of international medical aid, distribution and management of resources, such as safe and potable water, food and medical supplies, and financial aid should be given to the most vulnerable or marginalized groups of the population. Moreover, given that some diseases are easily transmissible beyond the frontiers of a State, the international community has a collective responsibility to address this problem. The economically developed States Parties have a special responsibility and interest to assist the poorer developing States in this regard.'
97. General Comment No. 15, para. 34.
98. Although it has come closer to defining this duty in General Comment No. 18 (2005). The Committee notes that 'to comply with their international obligations in relation to article 6, States parties should endeavour to promote the right to work in other countries as well as in bilateral and multilateral negotiations' (para. 30). However, once again the Committee's language is not as strong as one might expect.
99. See, for example, General Comment No. 4, para. 10;
100. General Comment No. 5, para. 13;
101. General Comment No. 6, para. 18;
102. General Comment No. 11, para. 11;
103. Concluding Observations Sri Lanka, UN Doc. E/1999/22, para. 86;
104. Concluding Observations Nigeria, UN Doc. E/1999/22, para. 129;
105. Concluding Observations Suriname, UN Doc. E/1996/22, para. 166;
106. Concluding Observations Armenia, UN Doc. E/2000/22, para. 312;
107. and Concluding Observations Jamaica, UN Doc. E/C.12/add.75, para. 23.
108. In addition, see Alston, P., 'International law and human right to food', in: Alston, P. and Tomaševski, K. (eds), The right to food, Martinus Nijhoff Publishers, Dordrecht, 1984, p. 42;
109. and Craven, loc.cit. (note 24), p. 106.
110. See, for example, Concluding Observations Ukraine, UN Doc. E/1996/22, para. 271.
111. General Comment No. 2, para. 10.
112. Concluding Observations Moldova, UN Doc. E/C.12/1/Add.91, para. 41.
113. Idem.
114. See, for example, Concluding Observations El Salvador, UN Doc. E/1997/ 22, paras 171 and 185;