----- Original Message ----- From: "tonizingaro" gorangero@tele2.it To: romamigrantforum@yahoogroups.com Sent: Monday, February 14, 2005 6:56 PM Subject: Re: RMSF - appello- la tua firma per i Diritti Sociali, Economici e Culturali - con preghiera di inoltro
Antun Blazevic via delle Ceramiche 9 00167 Roma Associazione Culturale Rom DROMOMANIA ----- Original Message ----- From: manberg@tin.it To: romamigrantforum@yahoogroups.com; didaweb@yahoogroups.com; grosofo@yahoogroups.com Cc: info@dirittisociali.org Sent: Friday, February 13, 2004 7:19 PM Subject: RMSF - appello- la tua firma per i Diritti Sociali, Economici e Culturali - con preghiera di inoltro
Cari amici,
Ecco in inglese una dichiarazione scritta da una coalizione internazionale per ottenere un Protocollo Opzionale al Patto Internazionale per i Diritti Economici, Sociali e Culturali.
La cosa é seria per tutti quelli che tra noi credono che questi Diritti non siano abbastanza rispettati. se volete aderire, basta inoltrare questa mail a berry@icj.org specificando il vostro:
-nome -associazione -indirizzo
Se volete, potete inoltrare la risposta anche al mio indirizzo (manberg@tin.it ) che vi terrò informati in italiano sugli sviluppi di questa campagna Internazionale di vitale importanza, e su tutte le approcciabili scadenze.
Naturalmente servono energie e risorse di cui non disponiamo a
sufficienza,
ed ogni vostro slancio potrebbe essere quello che ci servirà per produrre eventi, dati, contatti, pressioni sul nostro governo e sulle istituzioni internazionali, e per seguire la trattativa in corso alle Nazioni Unite.
buon lavoro,
Manfred Bergmann
Casa dei Diritti Sociali (House of Social Rights), membro del Comitato Italiano per la Promozione e Protezione dei Diritti Umani
Via dei Mille 6 Roma 00185 Italy tel . (0039) 064464613 - cell 3474735067 manberg@tin.it www.dirittisociali.org www.december18.net Joint Sign-On Statement
Send endorsements to berry@icj.org
JOINT SUBMISSION BY NON-GOVERNMENTAL ORGANISATIONS, HUMAN RIGHTS INSTITUTIONS AND CIVIL SOCIETY GROUPS PERTAINING TO THE DELIBERATIONS OF THE COMMISSION ON HUMAN RIGHTS, INTER-SESSIONAL WORKING GROUP ESTABLISHED TO CONSIDER OPTIONS REGARDING THE ELABORATION OF AN OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
February 2004
I. INTRODUCTION
The fifty-ninth session of the Commission on Human Rights established an inter-sessional open-ended working group mandated to consider options regarding the elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, (hereinafter ICESCR or the
Covenant).
Motivated by a widespread concern for the protection and promotion of economic, social and cultural rights, the undersigned, in representation of non-governmental organisations, human rights institutions and civil society, submit the following views concerning the deliberations of the working group that will meet for its inaugural session in February 2004.
II. CONTEXT
Guided by principles enshrined in the United Nations Universal Declaration of Human Rights, it is clear that undivided State party adherence to the Covenant is of considerable importance in protecting and promoting
economic,
social and cultural rights. It is recognised that, through their ratification of the Covenant, States parties bear responsibility to ensure that
economic,
social and cultural rights are protected and promoted. The ensuing need to assist in the realisation of these rights, through the provision of a comprehensive international remedial mechanism to intervene during and/or adjudicate over ICESCR rights violations, is thus of paramount importance.
III. MINIMUM CORE CONTENT OF AN OPTIONAL PROTOCOL TO THE ICESCR
The undersigned non-governmental organisations, human rights institutions and civil society representatives assert that the following minimum core elements are essential for an Optional Protocol to the ICESCR to fulfil its potential as an effective mechanism through which economic, social and cultural rights may be protected and promoted:
(a) Comprehensive Scope
Gathering together representatives from over 170 States, the 1993 Vienna World Conference on Human Rights was unequivocal in confirming the universality, interdependence, indivisibility and interrelatedness of civil, cultural, economic, political and social rights. Given that the first Optional Protocol to the International Covenant on Civil and Political Rights, (hereinafter ICCPR), relates in a comprehensive manner to all of the rights embodied in that Covenant, not to adopt a similar approach in drafting an Optional Protocol to the ICESCR would be to directly challenge the universality, interdependence, indivisibility and interrelatedness of all human
rights.[1]
For this reason, an Optional Protocol to the ICESCR should clearly
address
all of the rights and State obligations enshrined in the Covenant.
(b) State Obligations to Respect, Protect and Fulfil Covenant Rights
As with the first Optional Protocol to the ICCPR, an Optional Protocol to the ICESCR should address both negative and positive State obligations associated with the realisation of Covenant rights. In particular, an Optional Protocol to the ICESCR should entertain complaints and empower an inquiry procedure where States parties violate their obligations to respect, protect and fulfil-facilitate/fulfil-provide Covenant rights.
The obligation to respect requires States parties to refrain from interfering with the enjoyment of Covenant enshrined economic, social and cultural rights. This is a negative obligation that mandates States parties to act in a way that does not violate economic, social and cultural rights and/or infringe on an individual?s freedom to access these rights. Within this context, States parties must ?respect the freedom of the individuals to take the necessary actions and use the necessary resources ? alone or in
association
with others.?[2]
The obligation to protect requires States parties to prevent ICESCR rights abuses by third parties. In this, States parties must take ?measures necessary to prevent other individuals or groups from violating the integrity,
freedom
of action, or other human rights of the individual ? including the infringement of his material resources.?[3]
The obligation to fulfil encompasses State party obligations to facilitate access to and/or provide for the full realisation of economic, social and cultural rights. This is a positive obligation. The obligation to facilitate requires States parties to pro-actively engage in activities that
strengthen
access to and the utilisation of resources and means to ensure the realisation of Covenant rights. The obligation to provide requires States to take measures necessary to ensure that each person within its jurisdiction may obtain basic economic, social and cultural rights satisfaction whenever they, for reasons beyond their control, are unable to realise these rights through the means at their disposal.[4]
State obligations under the Optional Protocol to the ICESCR must encompass both negative and positive obligations, thereby reinforcing the
universality
interrelatedness and indivisibility of all human rights. Such an approach would also serve as a reminder to the international community, through the ICESCR/Optional Protocol working group, of the importance it attaches to economic, social and cultural rights issues and seriousness with which it now responds to violations.
(c) An Optional Protocol Complaint's and Inquiry Procedure
Conceptualised as a complaint's mechanism and an inquiry procedure, an Optional Protocol to the ICESCR would possess the potential to significantly contribute towards the realisation of Covenant enshrined economic, social and
cultural
rights.
An Optional Protocol complaint's mechanism would provide individuals and groups with access to an international adjudicative procedure. Under
this
procedure, individuals and/or groups could communicate directly with the United Nations Committee on Economic, Social and Cultural Rights, (?the Committee?), to seek and obtain remedies for specific violations of rights contained in the Covenant.
An Optional Protocol?s inquiry procedure would empower the Committee to initiate an investigation into particularly grave or systematic abuses of Covenant rights. An inquiry procedure would reinforce an Optional Protocol?s complaints procedure as it would: (i) Open an avenue to address situations where individual/group communications could not adequately reflect the gravity or the systemic nature of violations of Covenant provisions; (ii) Allow grave and/or systematic Covenant violations to be investigated where individuals or groups were unable to utilise the complaint's mechanism for reasons including fear of reprisals; and (iii) Enable a more-timely response to grave and/or systematic violations of the provisions of the Covenant, and to continuing violations in particular.[5]
(d) Standing to Lodge an Optional Protocol Complaint
At a minimum, parties who possess the ability to initiate a complaint, (standing), under an Optional Protocol to the ICESCR, should include:
(i) Individuals and group of individuals[6] who have been
victims
of violations of Covenant rights by State parties;
(ii) Representatives of individuals or groups of individuals empowered to initiate complaints on behalf of individual and collective victims.
The importance of expressly acknowledging the competence of
representatives,
particularly non-governmental organizations and national human rights institutions to launch complaints on behalf of individual and groups victims of ICESCR violations cannot be underestimated. Under existing instruments,
complaints
on behalf of individual and group victims have either been specifically included[7] or such representative standing has been provided through adjudicative interpretation.[8] The significance of allocating standing to such representatives is rooted in the fact that these types of communications play an essential role in initiating international complaint's procedures, particularly
where
victims face the risk of ill-treatment or other retaliation for directly engaging in the process.[9]
(e) State Party Reservations Under an Optional Protocol
Precluding reservations to the Optional Protocol[10] to the ICESCR would represent a significant commitment by States parties which ratify the Protocol, to uphold the integrity of internationally recognised economic, social and cultural rights. Excluding the use of reservations would be appropriate as:
(i) The raison d?etre of an Optional Protocol would be to assist people in realising their economic, social and cultural rights as
enshrined
in the ICESCR. As a tool to both complement and strengthen the Covenant, to allow State party reservations to an Optional Protocol would be to undermine its potential as a tool for the full realisation of economic, social and cultural rights;
(ii) An Optional Protocol would by its very nature be optional and as such, reservations that curtailed its applicability would be
unnecessary;
(iii) An Optional Protocol would be a procedural instrument as it would neither introduce new nor expand present economic, social and
cultural
rights obligations that States parties accepted through their ratification of the Covenant. An Optional Protocol would thus merely serve as a means through which States parties would be encouraged to realise existing
ICESCR
obligations.
(iv) An effective Optional Protocol must recognise the indivisible and interdependent relationship amongst all Covenant rights. To allow States parties to individually select the ICESCR rights subject to an Optional Protocol strike at the core this relationship and the instruments ability to protect and promote Covenant rights. Such a selective approach would open the door to arguments as to the hierarchy of and inequality between economic, social and cultural rights, thereby encroaching upon the universality, interdependence, indivisibility and interrelatedness of all human rights.[11] Further, permitting the selection of economic, social and cultural rights subject to the Optional Protocol mechanisms would risk that some States parties would enhance their international prestige, through ratification, while restricting the instrument?s substantive application;
(v) State party concerns that might prompt reservations with regard to specific aspects of an Optional Protocol procedure could be
accommodated
through the provisions of the instrument itself.
IV. THE DRAFTING OF AN OPTIONAL PROTOCOL TO THE ICESCR: AVAILABLE RESOURCES
In considering options regarding the elaboration of an Optional Protocol to the ICESCR, the undersigned urge the open-ended working group to recommend the drafting of an Optional Protocol text to the 60th session of the Commission on Human Rights as conceptual issues related to this procedure have
received
a thorough analysis from a wide variety of sources that include:
(i) The abundant experience and jurisprudence of national,
regional
and international bodies/instruments that employ adjudicative/inquiry procedures related to violations of economic, social and cultural rights. Reference may be made to the United Nations Human Rights Committee, the European
Court
of Human Rights, the European Committee on Social Rights, the African Charter on Human and Peoples' Rights, the San Salvador Protocol, (Inter-American Commission jurisprudence and country reports), the Optional Protocol to the Covenant on the Elimination of Discrimination against Women, the
United
Nations Educational, Scientific and Cultural Organization Complaint's Procedure, the International Labour Organisation Committee on the Freedom of Association and an abundance of national jurisprudence;
(ii) A plethora of national and international and civil society conferences and instruments that have clarified the nature and scope of economic,
social
and cultural rights and States parties obligations under the ICESCR. Amongst these, the Declaration of Delhi (1959), the Law of Lagos (1961), the
Limburg
Principles on the Implementation of the ICESCR (1986), the World
Conference
on Human Rights (1993), the World Summit for Social Development (1995), the Bangalore Plan of Action (1995), the Maastricht Guidelines on the Violation of Economic, Social and Cultural Rights (1996) and United Nations/International Commission of Jurists' conferences on the Optional Protocol and economic, social and cultural rights, (1999, 2000, 2001, 2002 and 2003), amongst numerous others, may be instructive;
(iii) General Comments from the Committee that have clarified the nature and scope of States parties Covenant obligations and ICESCR rights including: international technical assistance measures; the nature of
States
parties obligations under article 2; the right to adequate housing; the economic, social and cultural rights of persons with disabilities and of older persons; the right to adequate housing, (forced evictions); the relationship between economic sanctions and respect for economic, social and cultural rights; the domestic application of the Covenant; the role of national
human
rights institutions in the protection of economic, social and cultural rights; plans of action for primary education; the right to adequate food; the
right
to education; the right to the highest attainable standard of health; and the right to water;
(iv) Committee discussions, summary records, studies and
reports
that have provided further clarification concerning the nature and scope of economic, social and cultural rights as they relate to an Optional Protocol to the ICESCR and in particular its work on a draft Optional Protocol and related issues, (E/C.12/1996/SR.44-49 and 54), (E/C.12/1996/CRP.2/Add.1), (E/C.12/1994/12), (E/CN.4/1997/105), (E/1993/22), and (E/C.12/1992/WP.9),
(v) The draft Optional Protocol to the ICESCR prepared by the Committee for consideration by the United Nations Commission on Human Rights, (E/CN.4/1997/105); and
(vi) Other sources that have further clarified conceptual issues related to an Optional Protocol to the ICESCR including: the experience of
numerous
United Nations Special Rapporteurs engaged in various aspects of economic, social and cultural rights;[12] the experience of the United Nations
working
group under which the Optional Protocol to the Convention on the
Elimination
of all Forms of Discrimination against Women was created; two reports from the independent expert appointed by the Commission on Human Rights, (resolution 2001/30), to examine the question of a draft Optional Protocol to the ICESCR; and the vast amount of doctrine concerning an Optional Protocol and economic, social and cultural rights issues.[13]
Given that conceptual issues related to an Optional Protocol to the ICESCR have received a thorough analysis from a wide variety of sources, the open-ended working group should utilise the above listed wealth of resources as a primary basis point from which the text of an Optional Protocol to the ICESCR may be drafted.
(V) THE DRAFTING OF AN OPTIONAL PROTOCOL TO THE ICESCR: TIMING CONSIDERATIONS
In conducting its deliberations, the ICESCR/Optional Protocol working
group
should bear in mind the Commission on Human Rights decision of 26 April 2000, (E/CN.4/2000/112), which endorsed that working group,
(m)andates should always offer a clear prospect of an increased level of human rights protection and promotion, (and that), (i)n creating any standard-setting working group, the Commission should consider a specific time-frame within which the group would be called upon to complete its task. ...(i)n most instances, the established time-frame should not in principle exceed five years.
Learning from the experiences of other processes that have led to the establishment of other Optional Protocols, the ICESCR/Optional Protocol working group should adopt a pragmatic yet determined approach towards the completion of its mandate.
the Undersigned Manfred Bergmann
on behalf of :
--
[1] Arambulo, K., Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights, Theoretical and Procedural
Aspects,
Intersentia, Antwerpen: 1999 at 235. See also van Hoof, F., "Discussion on the Draft Optional Protocols" in van Hoof, F. and Coomans, F., eds., The Right to Complain About Economic, Social and Cultural Rights, Netherlands Institute of Human Rights, Utrecht: 1995 at 212. See also See United Nations reference document E/C.12/1992/WP.9, paragraph 37. Following a comprehensive approach in drafting an Optional Protocol to the ICESCR would not preclude the institution of procedural safeguards that would ensure that the instrument is not abused. By way of example, while a comprehensive approach was utilised in drafting the first Optional Protocol to the ICCPR, in interpreting Article 1 of this Covenant, the United Nations Human Rights Committee instituted procedural safeguards so as to prevent the right to self-determination
from
being the subject of communications. See Ominayak v. Canada, Communication No. 167/1984, Official Records of the General Assembly, forty-fifth session, Supplement No. 40 (A/45/40), vol. II, annex IX, section A at 1-30.
[2] Asbjørn Eide, "Realisation of Social and Economic Rights. The Minimum Threshold Approach", International Commission of Jurists The Review 1989, Issue 43, 40, 1989, p. 43. See also Maastricht Guidelines on Violations of Economic Social and Cultural Rights, January 1997, para. 6.
[3] Ibid., (Eide) at 42.
[4] The Maastricht Guidelines on Violations of Economic, Social and
Cultural
Rights, para. 6. See also Committee on Economic, Social and Cultural Rights, General Comment 12, United Nations document reference, E/C.12/1999/5,
para.
[5] Inter-American Institute of Human Rights, Optional Protocol,
Convention
on the Elimination of all Forms of Discrimination against Women, Costa
Rica:
2000 at 71-72. An Optional Protocol to the ICESCR inquiry procedure
could
be modelled after either Article 20 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment or Article 8 of the Optional Protocol to the Convention on the Elimination of all Forms of Discrimination against Women, both of which authorise inquiry
procedures
in prescribed situations.
[6] Nowak, M., "The Need for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights" in International Commission of Jurists, The Review: Economic, Social and Cultural Rights and the Role of Lawyers, France: 1995 at 160. Limiting standing/ability to initiate complaints under an Optional Protocol to the ICESCR to individuals would be to
prevent
to deprive all groups and legal entities including trade unions, educative associations, social groups and cultural minorities from the benefits associated with this instrument.
[7] Providing standing to individuals and organisations to initiate complaints on behalf of individual and group victims of State party ICESCR rights violations follows the precedents of Article 2 of the Optional Protocol to the Convention on the Elimination of all Forms of Discrimination against Women which
states
?Where a communication is submitted on behalf of individuals or groups of individuals, this shall be with their consent unless the author can
justify
acting on their behalf without such consent?, Article 22 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and Article 77 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.
[8] Supra (Arambulo), note 1 at 223, 233-4. Through the practice of the United Nations Human Rights Committee, communications submitted on behalf of victims of State party ICCPR violations have been accepted.
[9] Supra note 3 at 43. See also supra note 4 at 161.
[10] Article 17 of the Optional Protocol to the Convention on the Elimination of all Forms of Discrimination against Women explicitly states ?No reservations to this Protocol may be permitted?
[11] The United Nations Division for the Advancement of Women Department of Economic and Social Affairs, The Convention on the Elimination of All Forms of Discrimination Against Women, The Optional Protocol: Text and Materials, United Nations: 2000, at 49-50. See also supra, note 3 at 98-99. See also supra note 1 at 236.
[12] For example, housing, education, food and development.
[13] See the work of P. Alston, K. Arambulo, M. Craven, A. Eide, D. Harris, P. Hunt, S. Liebenberg, B. Porter, E. Riedel, M. Scheinin and F. van Hoof, to name but a few.
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