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HUMAN RIGHTS QUARTERLY * Catarina de Albuquerque Chairperson-Rapporteur of the UN Open-Ended Working Group on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, and an invited professor at the Universities of Coimbra, Braga, ISCTE (Higher Institute of Business and Labour Sciences) and Autonomous University of Lisbon (Portugal). Since November 2008, she has been UN Independent Expert on the issue of human rights obliga-tions related to access to safe drinking water and sanitation. The author wishes to thank Bruce Porter and Simon Walker for comments and sugges-tions made on an earlier version of this text. She also wishes to take this opportunity to thank Simon Walker and Ulrik Halsteen—the two Secretaries of the Working Group—for their constant, professional and committed support, which went far beyond their obligations as staff members of the OHCHR and without which the negotiations would not have gone as “smoothly” and pleasantly as they did. Human Rights Quarterly 32 (2010) 144–178 © 2010 by The Johns Hopkins University Press 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 Catarina de Albuquerque* ABSTRACT At the 2009 Treaty Event held at UN Headquarters in New York, twenty-nine states signed the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. This new treaty had been adopted by consensus of the United Nations General Assembly on 10 December 2008, after decades of discussions and a surprisingly short nine months of intergovernmental negotiations over a draft. This article aims to share some of the history of discussions on economic, social, and cultural rights and on an optional protocol to the Social Rights Covenant within the United Nations. It also intends to show how this debate has evolved up until now, especially during the discussions within the UN open-ended working group on an optional protocol. 2010Optional Protocol to the ICESCR 145 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]; International Convention on the Elimination of All Forms of Racial Discrimina-tion, 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); 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 ( entered into force 22 Dec. 2000); 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); 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/45/158 (1990) ( entered into force 1 Jul. 2003); 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). I. INTRODUCTION The Vienna Declaration and Program of Action (VDPA) adopted at the 1993 World Conference for Human Rights expressly mentions that “[a]ll human rights are universal, indivisible and interdependent and interrelated” and must be treated “in a fair and equal manner, on the same footing, and with the same emphasis.” 1 Despite this, at the national, regional, and universal levels, economic, social, and cultural rights have been treated as poor relatives of human rights and perceived with caution, skepticism, or triviality.Currently existing at the international level are different possibilities for filing communications in cases of torture, arbitrary detention, racial discrimi-nation, discrimination against women, and violations of freedom of speech or religion. 2 However, in those cases where the victim “simply” suffers from chronic malnutrition, seriously inadequate health care, total lack of educational opportunities, or a combination of all these phenomena, that victim does not have the right to petition at the international level. As stated by the then chairperson of the Committee on Economic, Social and Cultural Rights during the Vienna Conference in 1993, the sad reality is that we continue to tolerate all too often breaches of economic, social and cultural rights which, if they occurred in relation to civil and political rights, would provoke expres- Vol. 32 146 HUMAN RIGHTS QUARTERLY 3. 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 ]. 4. 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). 5. See id. at 19–20. 6. 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 U NITED N ATIONS , T HE M ILLENNIUM D EVELOPMENT G OALS R EPORT 4–5, 45 (2009) , available at http://www.un.org/ millenniumgoals/pdf/MDG_Report_2009_ENG.pdf. sions of horror and outrage and would lead to concerted calls for immediate remedial action. In effect, despite the rhetoric, violations of civil and political rights continue to be treated as though they were far more serious, and more patently intolerable, than massive and direct denials of economic, social and cultural rights. 3 This statement is almost twenty years old, but unfortunately, its content remains pertinent today. In fact, the disparities among individuals’ enjoyment of economic, social, and cultural rights are enormous. The High Commissioner of Human Rights referred to these disparities in her Plan of Action: The gap between rich and poor countries, and the global inequities it points to, seriously challenge our commitment to the universality of human rights. In human rights terms, poverty is both a symptom and a cause: continuing severe deprivation is a sign that those affected are living in a state of indignity, and thus denial of rights, and the poor and marginalized are deprived, above all, of the capacity to claim their rights. A marked characteristic of virtually all communi-ties living in extreme poverty is that they do not have access, on equal terms, to the institutions and services of Government that give effect to human rights. This inequality of access, in particular to justice, is often linked to discrimina-tion on other grounds. 4 Later in her Plan of Action, the High Commissioner recognizes that [economic, social and cultural] rights still enjoy a lesser status in law in most countries. Some believe that the principle of progressive realization of these rights creates special difficulties regarding accountability. . . . Much work remains to be done, however, including in convincing often skeptical publics and Govern-ments that human rights truly are interdependent and indivisible. 5 The realization of socioeconomic rights is still only a mirage for millions—or even billions—of persons. 6 In order to better implement economic, social, and cultural rights in the world, they must first be acknowledged as rights and treated on the same footing and with equal emphasis as civil and political 2010Optional Protocol to the ICESCR 147 7. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., U.N. Doc. A/6316 (1966), 999 U.N.T.S. 3 ( entered into force 23 Mar. 1976) [hereinafter ICCPR]; 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). 8. ICCPR, supra note 7, art. 28. 9. ICESCR, supra note 7, arts. 19–21.10. See Review of the Composition, Organization and Administrative Arrangements of the Sessional Working Group of Governmental Experts on the Implementation of the In- ternational Covenant on Economic, Social and Cultural Rights , adopted 28 May 1985, ECOSOC Res. 1985/17, U.N. ESCOR, at 15, U.N. Doc. E/RES/1985/85 (1985). rights. However, the international community still has different tools to ad-dress these inequalities of recognition, treatment, and enforcement. The next section will summarize some of the crucial steps taken by the United Nations to accomplish the goal of adopting a complaints mechanism at the international level for cases of violations of economic, social, and cultural rights. II. False Twins In 1966, the adoption of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR or Social Rights Covenant) formally separated the international protection of human rights into two distinct categories. 7 Although the two Covenants were adopted on the same day through a sole General Assembly resolution, and even though some of their provisions are similar, there exist fundamental differences between the two instruments. First, the Social Rights Covenant did not create an independent body for the follow-up and monitoring of the treaty’s enforcement at the national level, whereas the ICCPR foresaw the creation of the Human Rights Committee—a body composed of eighteen independent experts in charge of monitoring the way states parties fulfill their obligations under the ICCPR. This Committee fulfills its functions through the examination of periodic reports submitted by states parties on the measures the states have adopted to give effect to the rights recognized in the ICCPR and on the progress achieved in the enjoyment of these rights. 8 Instead, drafters of the Social Rights Covenant chose to give the UN Economic and Social Council (ECOSOC), a subsidiary body of the General Assembly with a political nature and where UN member states are repre-sented, the responsibility to receive and examine periodic reports submitted by states parties. 9 However, due to the inefficacity of the monitoring and follow-up procedures by ECOSOC, the Committee on Economic, Social and Cultural Rights (CESCR or Social Rights Committee), as we know it today, was created in 1985 through an ECOSOC resolution. 10 The CESCR
