Chronicle of an announced birth: The coming into life of the optional protocol to the international covenant on economic, social and cultural rights-the missing piece of the international bill of human rights

Human Rights Quarterly

Volumn 32, Issue 1, 2010, Pages 144-178

  De Albuquerque, Catarina ^a  

^a UNIVERSIDADE AUTÓNOMA DE LISBOA   (Portugal)

Author keywords

[No Author keywords available]

Indexed keywords

CULTURAL GEOGRAPHY; ECONOMIC GEOGRAPHY; HUMAN RIGHTS; INTERNATIONAL LAW; LEGISLATIVE IMPLEMENTATION; SOCIAL JUSTICE; UNITED NATIONS;

EID: 77950124475     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.0.0137     Document Type: Article

References (166)

1. Vienna Declaration and Programme of Action, adopted 25 June 1993, U.N. GAOR, 48th Sess., 22d plen. mtg., ¶ 5, U.N. Doc. A/CONF.157/23 (1993), reprinted in 32 I.L.M. 1661 (1993).
2. See generally Optional Protocol to the International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976) [hereinafter OPICCPR];
3. International Convention on the Elimination of All Forms of Racial Discrimination, adopted 21 Dec. 1965, G.A. Res. 2106 (XX), U.N. GAOR, 20th Sess., art. 14, 660 U.N.T.S. 195 (entered into force 4 Jan. 1969), reprinted in 5 I.L.M. 352 (1966);
4. Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, adopted 6 Oct. 1999, G.A. Res. 20378, U.N. GAOR, 54th Sess., U.N. Doc. A/ RES/54/4 (1999), 2131 U.N.T.S. 83 (enteredinto force 22 Dec. 2000);
5. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 Dec. 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., art. 22, U.N. Doc. A/39/51 (1985), 1465 U.N.T.S. 85 (entered into force 26 June 1987);
6. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted 18 Dec. 1990, G.A. Res. 39481, U.N. GAOR, 45th Sess., art. 77, U.N. Doc. A/Res/45/1 58 (1990) (entered into force 1 Jul. 2003);
7. Optional Protocol to the Convention on the Rights of Persons with Disabilities, adopted 13 Dec. 2006, G.A. Res. 44910, U.N. GAOR, 61st Sess., art. 1, U.N. Doc A/61/611 (2006) (entered into force 3 May 2008). In fact, from all the core human rights treaties, only the Convention on the Rights of the Child does not foresee a communications procedure. However, this situation is hopefully about to change soon because the Human Rights Council established, during its June 2009 session, an open-ended Working Group on an optional protocol to the Convention on the Rights of the Child to provide a communications procedure which will start its work in December 2009. Open-ended Working Group on an Optional Protocol to the Convention on the Rights of the Child To Provide a Communications Procedure, H.R.C. Res. 11/1, U.N. GAOR, Hum Rts. Council, 11th Sess., at 113, U.N. Doc. A/64/53 (2009).
8. Status of Preparation of Publications, Studies and Documents for the World Conference, Contribution Submitted by the Committee on Economic, Social and Cultural Rights, World Conf. on Hum. Rts., Prep. Comm., 4th Sess., Annex I, ¶ 5, U.N. Doc. A/CONF.157/ PC/62/Add.5 (1993) [hereinafter Status of Preparation].
9. See In Larger Freedom: Towards Development, Security, and Human Rights For All, Report of the Secretary-General, Kofi Annan, U.N. GAOR, 59th Sess., Agenda Items 45 & 55, at 8, U.N. Doc. A/59/2005/Add.3 (2005).
10. See id. at 19-20.
11. There are presently approximately 2.5 billion people without access to basic sanitation, over one billion people practice daily open defecation, almost one billion people do not have access to safe drinking water, 1.4 billion people live on less than $1.25 a day, and 72 million children don't have access to education. For these and other figures on the world's performance regarding the Millennium Development Goals, see United Nations, The Millennium Development Goals Report 4-5, 45 (2009), available at http://www.un.org/ millenniumgoals/pdf/MDG-Report-2009-ENG.pdf.
12. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21stSess., U.N. Doc. A/631 6 (1966), 999 U.N.T.S. 3 (entered into force 23 Mar. 1976) [hereinafter ICCPR];
13. International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 (entered into force 3 Jan. 1976) [hereinafter ICESCR]. The ICESCR now has 160 states parties (the Bahamas being the state that most recently became party to the Covenant on 23 December 2008).
14. ICCPR, supra note 7, art. 28.
15. ICESCR, supra note 7, arts. 19-21.
16. See Review of the Composition, Organization and Administrative Arrangements of the Sessional Working Group of Governmental Experts on the Implementation of the International Covenant on Economic, Social and Cultural Rights, adopted 28 May 1 985, ECOSOC Res. 1985/17, U.N. ESCOR, at 15, U.N. Doc. E/RES/1 985/85 (1985).
17. Id.
18. OPICCPR, supra note 2, art. 1.
19. The Realization of Economic, Social and Cultural Rights, Final Report Submitted by Mr. Danilo Türk, Special Rapporteur, U.N. ESCOR, Comm'n on Hum. Rts., Sub-Comm'n on Prev. of Discrim. & Protect. of Min., 44th Sess., Provisional Agenda Item 8, ¶ 186, U.N. Doc. E/CN.4/Sub.2/1992/16 (1992)
20. Id. ¶ 211.
21. Towards an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, adopted 11 Dec. 1992, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 7th Sess., ¶ 5, U.N. Doc. A/CONF.1 57/PC/62/Add.5 (1993).
22. Status of Preparation, supra note 3, Annex II, ¶ 93.
23. Id. Annex I, ¶ 18.
24. Vienna Declaration and Programme of Action, supra note 1, ¶ 5.
25. Id. ¶ 75.
26. During the Working Group's negotiations on the optional protocol, some of the delegations that were skeptical about the complaints procedure provided for in the Vienna Declara tion and Programme of Action (and more concretely the fact that it refers to "protocols" in the plural) to argue that the optional protocol could have a different objective than establishing a communications procedure. They suggested that the optional protocol could, for example, serve to improve the reporting procedure before the Committee, change the Committee's methods of work, and strengthen the participation of NGOs in the Committee's work.
27. Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Note by the Secretary-General, U.N. ESCOR, Comm'n on Hum. Rts., 53d Sess., Provisional Agenda Item 14, ¶ 17, U.N.Doc. E/CN.4/1 997/105 (1996).
28. Id. ¶ 26.
29. Id.
30. Croatia shared the view of the Committee on Economic, Social and Cultural Rights that economic, social, and cultural rights are "fully justiciable;" suggested that the Committee develops "a clear system of indicators with the purpose of defining the minimum in the scope of rights that has to be followed irrespectively of the economic prospects of the country involved;" and made some "minor" drafting suggestions to the Committee's text. Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Note by the Secretariat, U.N. ESCOR, Comm'n on Hum. Rts., 55th Sess., at 3-4, U.N. Doc. E/CN.4/1999/112 (1999).
31. Cyprus simply expressed "full support [to] the elaboration of a draft optional protocol." Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Report of the Secretary-General, U.N. ESCOR, Comm'n on Hum. Rts., 54th Sess., at 2, U.N. Doc. E/CN.4/1998/84 (1998).
32. The Czech Republic seemed to support the idea of an optional protocol and made several drafting suggestions to the text proposed by the Committee. See Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Report of the High Commissioner for Human Rights, U.N. ESCOR, Comm'n on Hum. Rts., 56th Sess., at 3-4, U.N. Doc. E/CN.4/2000/49 (2000).
33. Ecuador also supported the adoption of a draft protocol, made some specific propos als on the instrument's language, and recommended that the term "optional should be deleted in order to make it possible for States parties to the Covenant to be obliged to accede to the adjective instrument. In that way, both instruments would become more effective and the application of their substantive provisions would be easy to ensure." Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Report of the Secretary-General, supra note 25, at 3-4.
34. Finland also supported the elaboration of an optional protocol that provides a system of individual communications that "enhance[] the legal protection of the rights of indi viduals. The proposed optional protocol would also be a step forward to strengthen the implementation of economic, social and cultural rights. It would be a means to ensure that the rights guaranteed in the Covenant are fully recognized and implemented in national practice and legislation." Id. at 4-5.
35. The government of Georgia considered that "granting of individuals or groups the right to submit communications concerning on-compliance with the Covenant [was] a logical step." Id. at 5.
36. Germany expressed a cautious position, having doubts as to whether a complaints pro cedure would in fact help to better implement economic, social, and cultural rights. The German government used three types of arguments in order to sustain its position. On the one hand, it asserted that the implementation of the Covenants' rights "depends upon the economic, social and cultural framework created by individual countries' general policies, as well as upon external conditions, which often cannot be enforced under national law." Germany also explained their position that "frequent lack of justiciability threatens to render ineffective the complaints procedure," which might then "lead to the complaints procedure losing credibility." Finally, the German Government pointed to a possible collision between the complaints procedure and the procedure for examining reports by the Committee on Economic, Social and Cultural Rights. Id. at 5.
37. The Lebanese government also seemed implicitly to support the drafting of an optional protocol. However, it proposed that the text reflects and confirms "the relationship be tween the realization of development and the realization of the other Covenant rights." Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Report of the High Commissioner for Human Rights, supra note 26, at 6.
38. Lithuania supported the draft optional protocol. Id. at 6-7.
39. Mauritius "welcome[d] the principle of an individual communications procedure under the ICESCR." Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Report of the High Commissioner for Human Rights, U.N. ESCOR, Comm'n on Hum. Rts., 57th Sess., at 3, U.N. Doc. E/CN.4/2001/62 (2000) [hereinafter Draft Optional Protocol, Report of the High Commissioner for Human Rights II] .
40. Mexico referred to the importance it attaches "to the principles of the interdependence and indivisibility of all human rights" and therefore supported drawing up an optional protocol to the International Covenant on Economic, Social and Cultural Rights. It also mentioned that the optional protocol "should as far as possible resemble the first Optional Protocol to the International Covenant on Civil and Political Rights." Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Note by the Secretariat, Addendum, U.N. ESCOR, Comm'n on Hum. Rts., 55th Sess., at 3, U.N. Doc. E/CN.4/1 999/112/Add.1 (1999).
41. Norway supports the establishment of a complaints procedure on the basis of "the principle of indivisibility, interdependence and interrelatedness of human rights," which would "also be a step forward towards strengthening economic, social and cultural rights." However, the government of Norway also expressed concern about the "resource constraints of the human rights mechanisms and the limited capacity of the Committee on Economic, Social and Cultural Rights." Draft Optional Protocol, Report of the High Commissioner for Human Rights II, supra note 33, at 3-4.
42. The government of Portugal expressed full support to the development and elaboration of a draft optional protocol. It expressed a preference for the term "violation" of the Covenant (which is more prudent and restrictive), rather than the language "unsatisfac tory application" used under the Additional Protocol to the European Social Charter. Portugal also supported the Committee's proposal that the optional protocol applies to all the rights contained in article 1 to 15 of the Covenant. Id. at 5-7.
43. Sweden expressed doubts regarding the drafting of an optional protocol that were based on the fact that for "an individual complaint procedure to function in a credible and efficient way, the State obligations to which such a procedure would refer would have to be precise," which is not the case of the rights contained in the ICESCR. Sweden also pointed to differences in nature between the rights contained in the ICCPR and in the ICESCR and to its belief that economic, social, and cultural rights are to be "progressively achieved," rather than "protected and respected." The government of Sweden stated that an individual complaint procedure under the ICESCR would not "serve the purpose of illuminating problems or deficiencies when it comes to the steps to betaken by a State to realize a particular right." Sweden also pointed to a possible overlap of the competences of the Human Rights Committee and of the Committee on Economic, Social and Cultural Rights if the proposed optional protocol were to be adopted, given that the two Covenants have some common rights. This would create a danger that "divergent standards would be developed when handling an individual complaint. Such divergences could create serious problems for States which have declared themselves bound by both instruments, and which would face a situation of having to adapt themselves to international case-law which is not consistent." Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Note by the Secretariat, Addendum, supra note 34, at 4-6.
44. The Syrian Arab Republic implicitly supported the draft optional protocol and made several drafting suggestions thereto-many of which are outside the scope of a procedural complaints procedure and are aimed at creating new substantive rights (for example, the right to development or the right to social justice). Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Report of the Secretary- General, supra note 25, at 6.
45. Question of the Realization in All Countries of the Economic, Social and Cultural Rights Contained in the Universal Declaration of Human Rights and in the International Cov enant on Economic, Social and Cultural Rights, and Study of Special Problems Which the Developing Countries Face in Their Efforts to Achieve These Human Rights, adopted 17 Apr. 2000, C.H.R. Res. 2000/9, U.N. ESCOR, Comm'n on Hum. Rts., 56th Sess., 52d mtg., at 69, ¶ ¶ 7(b), 7(f), U.N. Doc. E/CN.4/2000/1 67 (2000)
46. Report on the Workshop on the Justiciability of Economic, Social and Cultural Rights, with Particular Reference to the Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, U.N. ESCOR, Comm'n on Hum. Rts., 57th Sess., at 15, U.N. Doc. E/CN.4/2001/62/Add.2 (2001).
47. Civil society in general and civil society organizations in particular played a crucial role in the negotiations of the Optional Protocol to the ICESCR. They organized inter-sessional meetings and seminars and lobbied governments and Permanent Missions. In addition, they managed to gain the trust of the states' delegates; it was not unusual to witness states' delegations asking them for advice and to clarify complicated legal issues under debate. The NGOs created an International NGO Coalition for an Optional Protocol to the ICESCR that significantly contributed to the positive outcome of the negotiations. The Coalition is now fighting for the entry into force of the Optional Protocol. For more information on the Coalition's work, see International NGO Coalition for an Optional Protocol to the ICESCR, available at http://www.opicescr-coalition.org/.
48. Question of the Realization in All Countries of the Economic, Social and Cultural Rights Contained in the Universal Declaration of Human Rights and in the International Cov enant on Economic, Social and Cultural Rights, and Study of Special Problems Which the Developing Countries Face in Their Efforts To Achieve These Human Rights, adopted 20 Apr. 2001, C.H.R. Res. 2001/30, U.N. ESCOR, Comm'n on Hum. Rts., 57th Sess., at 156, U.N. Doc. E/CN.4/2001/167 (2001).
49. Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, adopted 15 August 2001, Sub-Comm'n Res. 2001/6, U.N. ESCOR, Comm'n on Hum. Rts., Sub-Comm'n on Promotion & Protect. of Hum. Rts., 53d Sess., at 23, U.N. Doc. E/CN.4/2002/2 (2001).
50. Status of the International Covenants on Human Rights, Report of the Independent Expert on the Question of a Draft Optional Protocol to the International Covenant on Economic, Social, and Cultural Rights, U.N. ESCOR, Comm'n on Econ., Soc. & Cult. Rts., 58th Sess., Provisional Agenda Item 10, ¶ ¶ 53, 55, U.N. Doc. E/CN.4/2002/57 (2002).
51. Status of the International Covenants on Human Rights, Report by Mr. Hatem Kotrane, Independent Expert on the Question of a Draft Optional Protocol to the International Covenant on Economic, Social, and Cultural Rights, U.N. ESCOR, Comm'n on Econ., Soc. & Cult. Rts., 59th Sess., Provisional Agenda Item 10, U.N. Doc. E/CN.4/2003/53 (2003).
52. Question of the Realization in All Countries of the Economic, Social and Cultural Rights Contained in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights, and Study of Special Problems which the Developing Countries Face in their Efforts to Achieve these Human Rights, adopted 22 Apr. 2002, C.H.R. Res. 2002/24, U.N. ESCOR, Comm'n on Hum. Rts., 58th Sess., 49th mtg., at 116 ¶ 9, U.N. Doc. E/CN.4/2002/200 (2002).
53. Status of the International Covenants on Human Rights, Report by Mr. Hatem Kotrane, Independent Expert on the Question of a Draft Optional Protocol to the International Covenant on Economic, Social, and Cultural Rights, supra note 45, ¶ 75.
54. Id. ¶ 76.
55. Question of the Realization in All Countries of the Economic, Social and Cultural Rights Contained in the Universal Declaration of Human Rights and in the International Cov enant on Economic, Social and Cultural Rights, and Study of Special Problems Which the Developing Countries Face in Their Efforts to Achieve These Human Rights, adopted 22 Apr. 2003, C.H.R. Res. 2003/18, U.N. ESCOR, Comm'n on Hum. Rts., 59th Sess., 55th mtg., ¶ 13, U.N. Doc. E/CN.4/2003/L.11/Add.3 (2003).
56. The author prepared the Portuguese drafts of the omnibus resolution on economic, social, and cultural rights in 2001, 2002, and 2003 and chaired the respective negotiations within the Commission on Human Rights. The information contained here is based on discussions held between states during the resolutions' respective informal negotiations in Geneva, in which the author participated. Because these were informal negotiations, by their very nature, no official and public documents containing any of the information here transmitted exist. Hence, the elements disclosed are based on personal notes taken and internal reports prepared by the author at the time of these negotiations.
57. 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, U.N. ESCOR, Comm'n on Hum. Rts., 60th Sess., Agenda Item 10, U.N. Doc. E/CN.4/2004/44 (2004) [hereinafter First Session];
58. 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 Second Session, U.N. ESCOR, Comm'n on Hum. Rts., 61 st Sess., Agenda Item 10, U.N. Doc. E/CN.4/2005/52 (2005) [hereinafter Second Session];
59. 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 Third Session, U.N. ESCOR, Comm'n on Hum. Rts., 62d Sess., Agenda Item 10, U.N. Doc. E/CN.4/2006/47 (2006) [hereinafter Third Session]. 52. Second Session, supra note 51, ¶ 1.
60. Paul Hunt, Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health;
61. Miloon Kothari, Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living;
62. Eibe Riedel, Member of the Committee on Economic, Social and Cultural Rights (CESCR); Martin Scheinin, Member of the Human Rights Committee (HRC);
63. and Régis de Gouttes, Member of the Committee on the Elimination of Racial Discrimination (CERD) all took part in the interactive dialogue.
64. First Session, supra note 51, ¶ ¶ 28, 29, 31, 39
65. Id. ¶ 58-66.
66. See id. ¶ 67-74.
67. This was, however, not possible, given the immense workload of the UN editors and the one week proximity between the Working Group's first session and the Commission on Human Rights' annual session (which was always held during six weeks, starting in the second half of March). In addition, reports with attributions are more sensitive documents and open for comments by delegations for a longer period of time.
68. United Nations Open-ended Working Group To Consider Options Regarding the Elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Transcript for Day Ten of the Working Group, Cassette Number 84-86 (5 Mar. 2004) (on file with the author). Curiously, some authors have used this opposition by the two states to assert that the Working Group's first session "ended in disarray" and that the "participating States were in sharp disagreement over the viability of the proposal. " Michael J. Dennis & David P. Steward, Justiciability of Economic, Social and Cultural Rights: Should There Be an International Complaints Mechanism To Adjudicate the Rights to Food, Water, Housing and Health?, 98 Am. J. Int'l L. 462 (2004). The Holy See rightly and appropriately commented, "[I]t would be a pleasant miracle were we to reach consensus during this first meeting." The Holy See, Statement During the First Meeting of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights Working Group (27 Feb. 2004) (on file with the author).
69. First Session, supra note 51, ¶ 75.
70. Id. ¶ 76.
71. Id. ¶ 76-77.
72. See Question of the Realization in All Countries of the Economic, Social and Cultural Rights Contained in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights, and Study of Special Problems Which the Developing Countries Face in Their Efforts to Achieve These Human Rights, adopted on 1 9 Apr. 2004, C.H.R. Res. 2004/29, U.N. ESCOR, Comm'n on Hum. Rts., 60th Sess., at 102, 108 ¶ 14, U.N. Doc. E/CN.4/2004/127 (2004).
73. Louise Arbour, U.N. High Commissioner for Human Rights, Address at the Second Session to the Open-Ended Working Group Established by the Commission on Human Rights (14 Jan. 2005), available at http://www.unhchr.ch/huricane/ huricane.nsf/view01/ ECAE2629449C1EBC.
74. The invited Special Rapporteurs were Jean Ziegler, Special Rapporteur on the right to food; Emmanuel Decaux, Special Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights on the universal implementation of international human rights treaties; and Doudou Diène, Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance. The interactive dialogue with a panel of experts from other UN organizations with supervisory mechanisms relevant to some economic, social, and cultural rights counted with the presence of Lee Swepston from ILO and Vladimir Volodin from UNESCO. The treaty body experts who attended another interactive panel were Eibe Riedel, member of the Committee on Economic, Social and Cultural Rights; Andreas Mavrommatis, member of the Committee against Torture (CAT); and Göran Melander, former member of the Committee on the Elimination of Discrimination against Women (CEDAW). Finally, two experts from regional human rights protection systems were invited: E.V.O. Dankwa, Commissioner of the African Commission on Human and Peoples' Rights, who addressed the working group about the African regional system, and Mr. Kristensen, Deputy Executive Secretary of the Com mittee of Independent Experts (European Committee of Social Rights), who explained the state reporting system and collective complaints procedure under the European Social Charter. After his presentation at the working group, E.V.O. Dankwa met with the African Group in a closed session, which proved to have had a decisive impact on conjuring the African Group's unanimous support to the optional protocol. Dankwa's main argument was that an optional protocol would not create anything substantially differentthan what already existed within the African Human and People's Rights system. After this meeting, a shift in the African position was palpable, and at the end of the session, the African Group was in favor of drafting an optional protocol.
75. See Second Session, supra note 51, ¶ ¶ 95-99;
76. see also Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Note by the Secretary-General, supra note 21, at 1-2.
77. See Second Session, supra note 51, ¶ ¶ 85-94.
78. These states were Argentina (speaking on behalf of the Group of Latin American and Caribbean States (GRULAC)), Belgium, Chile, Costa Rica, Croatia, Cuba, the Czech Republic, Ecuador, Ethiopia (speaking on behalf of the African Group), Finland, France, Germany, Mexico, Peru, Portugal, the Russian Federation, Spain, Slovenia, and Venezuela. Second Session, supra note 51, ¶ 101. On the other hand, the representatives of Australia, Canada, Japan, Poland, and the United States "had yet to be convinced that an optional protocol with a communications mechanism would contribute effectively to improving implementation of economic, social and cultural rights." Id. ¶ 103.
79. Ethiopian Delegation, Statement of Ethiopia on Behalf of the African Group to the Sec ond Session of the United Nations 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 file with the author).
80. Second Session, supra note 51, ¶ 104.
81. Id. ¶ 109.
82. Id.
83. Elements for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, U.N. ESCOR, Comm'n on Hum. Rts., 62d Sess., U.N. Doc. E/CN.4/2006/WG.23/2 (2005) [hereinafter Elements for Protocol].
84. Id. ¶ ¶ 1-2.
85. Id.
86. Third Session, supra note 51, ¶ 99.
87. Id. ¶ 6.
88. Id. ¶ 7.
89. Id. ¶ ¶ 10, 16.
90. Id. ¶ ¶ 11, 18.
91. Id. ¶ 12.
92. Egypt's Ambassador to Portugal at that time, Ibrahim Salama, was also the Chairperson of the UN Working Group on the Right to Development. This circumstance and the fact that Egypt played a crucial role within the African Group might have been reasons for the growing support for an optional protocol by the African Group.
93. Third Session, supra note 51, ¶ ¶ 1, 2.
94. Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, U.N. GAOR, Hum. Rts. Council, 6th Sess., U.N. Doc. A/HRC/6/WG.4/2 (2007).
95. Id. Annex II, ¶ 6.
96. Id. Annex I, art. 2 ¶ 1.
97. Id. Annex I, art. 3 ¶ 1.
98. Id. Annex I, art. 3 ¶ 2.
99. Id. Annex I, art. 8 ¶ 4.
100. See id. Annex I, art. 21.
101. See Report of the Open-ended Working Group on an Optional Protocol to the Interna tional Covenant on Economic, Social and Cultural Rights on Its Fourth Session, U.N. GAOR, Hum. Rts. Council, 6th Sess., Agenda Item 3, ¶ 148, U.N. Doc. A/HRC/6/8 (2007) [hereinafter Fourth Session].
102. Inter-American Institute of Human Rights, Negotiations Manual for the Optional Protocol to the ICESCR (unpublished document, on file with the author).
103. John P. Humphrey, The Memoirs of John P. Humphrey, The First Director of the United Nations Division of Human Rights, 5 HUM. RTS. Q. 387 (1983).
104. Catarina de Albuquerque, Chairperson of the United Nations Open-ended Working Group To Consider Options Regarding the Elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Opening Statement at the Working Group's Fourth Session (16 Jul. 2007) (on file with author).
105. Id.
106. Id.
107. See Fourth Session, supra note 90, ¶ 33.
108. Part I of the Covenant is composed of one single provision, namely Article 1 on the right to self-determination. See ICESCR, supra note 7, art. 1.
109. See Fourth Session, supra note 90, ¶ 37. These states were Australia, China, Denmark, Germany, Greece, Japan, the Netherlands, New Zealand, Poland, the Republic of Korea, Russia, Switzerland, Turkey, the United Kingdom, and the United States. Id.
110. See Id. ¶ ¶ 38-39.
111. Id. ¶ ¶ 47-56.
112. See id. ¶ 144. Regarding draft Article 23, the opposition came from a group of states that saw the provision as a "Trojan horse" that would promote a "unified treaty monitoring body" through the "backdoor"-something that these states had opposed in the past. However, the chairperson's intentions when drafting that provision were completely different than promoting a unified body and had solely in mind the process to rectify the Committee on Economic, Social and Cultural Right's legal status, enabling a swifter transition from the present Committee to a future one.
113. Id. ¶ 95.
114. Id. ¶ 95.
115. Id. ¶ 139.
116. Id. India suggested deleting draft Article 21. Greece, Poland, and Turkey suggested leaving the matter "to be determined by the principles of international law." Id. ¶ 140.
117. Id. ¶ 141.
118. See Revised Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, U.N. GAOR, Hum. Rts. Council, 8th Sess., U.N. Doc.A/HRC/8/WG.4/2 (2007) [hereinafter Revised Draft Optional Protocol 2007].
119. Id. ¶ 3.
120. Id. ¶ 4.
121. Catarina de Albuquerque, Chairperson of the United Nations open-ended Working Group to consider options regarding the elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Opening Statement at the Working Group's Fifth Session (4 Feb. 2008) (on file with author)
122. Summary Record of the Twenty-Ninth Meeting, U.N. ESCOR, Comm'n on Hum. Rts., 2d Sess., 7, U.N. Doc. E/CN.4/AC.1/SR.29 (1948).
123. Revised Draft Optional Protocol 2007, supra note 107, ¶ ¶ 32-33. Some delegations proposed the inclusion of a qualifier when referring to the human rights violations that would be subject to the communications procedure. For example Canada, China, Poland, and Sweden favored retaining a significant violation. These states also wanted to limit the new procedure to only address cases affecting "direct" victims.
124. Id. ¶ 42. However, many states, while not supporting the collective communications provision, expressed support to the proposal aimed at giving NGO's amicus curiae standing.
125. Report of the Open-ended Working Group on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights on Its Fifth Session, U.N. GAOR Hum. Rts. Council, 8th Sess., Agenda Item 3, ¶ 59, U.N. Doc. A/HRC/8/7 (2008) [hereinafter Fifth Session].
126. Id. ¶ 66.
127. Id.
128. Id. ¶ 91.
129. Id. ¶ 114. These delegations were Argentina, Bangladesh, Chile, Costa Rica, Ecuador, Finland, France, Germany, India, Liechtenstein, Mexico, Portugal, the Russian Federation, and Sri Lanka. Id.
130. Id.
131. Id. ¶ 123.
132. Id. ¶ 126.
133. Catarina de Albuquerque, Chairperson of the United Nations Open-ended Working Group To Consider Options Regarding the Elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Opening Statement to the Second Session of the Working Group's Fifth Session (31 Mar. 2008) (on file with author).
134. Id.
135. Id.
136. Id.
137. Louise Arbour, High Commissioner for Human Rights, Statement to the Open-ended Working Group On an Optional International Covenant on Economic, Social and Cultural Rights (31 March 2008), available at http://www.unhchr.ch/ huricane/huricane.nsf/view01/56935B5FB6A5B376C12574250039EAE0?opendocument.
138. Revised Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Letter from the Chairperson-Rapporteur, Catarina de Albuquerque, to the Members of the Open-ended Working Group on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, U.N. GAOR, Hum. Rts. Council, 8th Sess., U.N. Doc. A/HRC/8/WG.4/3 (2008).
139. Catarina de Albuquerque, Chairperson of the United Nations Open-ended Working Group To Consider Options Regarding the Elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Statement to the Work ing Group's Fifth Session (31 Mar. 2008) (on file with author).
140. Id.
141. Fifth Session, supra note 114, Annex I, art. 2.
142. Id. Annex I, art. 3(2)(a).
143. Id. Annex I, art. 3(2)(c).
144. Id. Annex I, art. 4.
145. Id. Annex I, art. 5.
146. Id. Annex I, art. 7.
147. Id. Annex I, art. 8 ¶ 1.
148. Id. Annex I, art. 8 ¶ 3.
149. Id. Annex I, art. 8 ¶ 4.
150. Text of the proposals on file with the author.
151. Id.
152. See Republic of South Africa v. Grootboom, 2001 (1) SA 46 (CC) (S. Afr.).
153. Fifth Session, supra note 114, Annex I, art. 10.
154. Id. Annex I, art. 11.
155. Id. Annex I, art. 13.
156. Id. Annex I, art. 14.
157. Id. Annex I, art. 18.
158. Id. ¶ ¶ 214, 245.
159. Article 1 of the ICESCR (which corresponds to Part I of the text) that foresees the right to self-determination was in danger of being left out.
160. Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, adopted 10 Dec. 2008, U.N. GAOR, 63d Sess., U.N. Doc. A/63/435 (2008).
161. Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, U.N. GAOR, Hum. Rts. Council, 63d Sess., U.N. Doc. A/C.3/63/L.47 (2008) [hereinafter Draft Protocol 2008]. For the news of the Protocol's adoption by the General Assembly's Third Committee, see Press Release, UN General Assembly, Third Committee Recommends General Assembly Adoption of Optional Protocol to International Convention on Economic, Social and Cultural Rights: Other Texts Address Torture, Self-Determination, Practices Fuelling Racism; Also Rejects by Recorded Cote Seven Amendments to Death Penalty Moratorium Draft, U.N. Doc. GA/SHC/3938 (18 Nov. 2008).
162. Draft Protocol 2008, supra note 150, ¶ 2.
163. As of 18 November 2009, twenty-nine states had signed the Optional Protocol. These states are Argentina, Armenia, Azerbaijan, Belgium, Chile, Congo, Ecuador, El Salvador, Finland, Gabon, Ghana, Guatemala, Guinea-Bissau, Italy, Luxembourg, Madagascar, Mali, Montenegro, Netherlands, Paraguay, Portugal, Senegal, Slovakia, Slovenia, Solomon Islands, Spain, Timor-Leste, Togo, Ukraine, and Uruguay.
164. Navanethem Pillay, High Commissioner for Human Rights, Statement at the Signing Ceremony for the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (24 Sept. 2009), available at http://www.unhchr.ch/huricane/huricane.nsf/view01/ 5EE2E0E5168886FCC125763B00589EF3?opendocument
165. Catarina de Albuquerque, Chairperson of the United Nations Open-ended Working Group To Consider Options Regarding the Elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Closing Statement to the Second Session of the Working Group's Fifth Session (4 Apr. 2008).
166. Eleanor Roosevelt, Address at the Presentation of In Your Hands: A Guide for Community Action for the Tenth Anniversary of the Universal Declaration of Human Rights (27 Mar. 1958).