ARTICLES

Correcting the historical asymmetry between rights: The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

Lilian Chenwi

Senior Researcher, Community Law Centre, University of the Western Cape, South Africa; Member of the Steering Committee of the International NGO Coalition for an Optional Protocol to CESCR (representing the Community Law Centre)

SUMMARY

On 10 December 2008, the United Nations General Assembly unanimously adopted the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. The Optional Protocol ensures that, just like victims of civil and political rights violations, victims of economic, social and cultural rights violations have access to remedies at the international level. This article examines the Optional Protocol, starting with the historical background and its content, highlighting some of the main issues of controversy.

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* LLB (Buea), LLM (Human Rights and Démocratisation in Africa), LLD (Pretoria); lchenwi@uwc.ac.za. An earalier draft of this paper was presented at the annual conference of partner faculties participating in the LLM (Human Rights and Democratisation in Africa) held at the University of Pretoria, 8 and 9 December 2008.
1 World Conference on Human Rights: Vienna Declaration and Programme of Action, Part I, para 5, UN doc A/CONF 157/23, 12 July 1993.         [ Links ]
2 A Eide & A Rosas 'Economic, social and cultural rights: A universal challenge' in A Eide et al (eds) Economic, social and cultural rights: A textbook (2001) 3.         [ Links ]
3 On 10 December 2007 (Human Rights Day), the UN Secretary-General launched a year-long campaign to mark the 60th anniversary of the Universal Declaration.
4 Optional Protocol, Optional Protocol to CESCR or OP-ICESCR.
5 'Human rights made whole', statement by Louise Arbour, then UN High Commissioner for Human Rights, http://www.policyinnovations.org/ideas/commentary/data/000068 (accessed 15 January 2009).         [ Links ]
6 The First Optional Protocol to the International Covenant on Civil and Political Rights, 1966, which establishes an individual complaints procedure for victims of civil and political rights violations.
7 A Eide 'Economic, social and cultural rights as human rights' in Eide et al (n 2 above) 14; M Craven 'The UN Committee on Economic, Social and Cultural Rights' in Eide et al (n 2 above) 470; H Steiner et al International human rights in context: Law, politics, morals (2007) 263-264.         [ Links ]
8 See generally Eide et al (n 2 above).
9 See generally R Gargarella et al Courts and social transformation in new democracies: An institutional voice for the poor? (2006);         [ Links ] J Squires et al (eds) The road to a remedy: Current issues in the litigation of economic, social and cultural rights (2005);         [ Links ] Y Ghai & J Cottrell (eds) Economic, social and cultural rights in practice: The role of judges in implementing economic, social and cultural rights (2004).         [ Links ]
10 A Pennegard 'Overview over human rights: The regime of the UN' in G Alfredsson et al (eds) International human rights monitoring mechanisms (2001) 27-28.         [ Links ]
11 Arts 16 & 17 of CESCR require states to submit reports on the measures which they have taken and the progress made in achieving observance of the rights in CESCR.
12 It should be noted that throughout the sessions of the Open-Ended Working Group on an OP-ICESCR, though some states sustained their positions on various issues, the position of other states changed at various sessions. Hence, this article tries to capture the latest position of states as contained in the reports of the Working Group.
13 For additional reading on the historical background and benefits of the OP-ICESCR, see L Chenwi & C Mbazira 'The Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights' (2006) 7(1) ESR Review 9.         [ Links ]
14 Vienna Declaration and Programme of Action, para 75.
15'Contribution du Comité des droits économiques, sociaux et culturels' UN Doc A/CONF 157/PC/62/Add.5, 26 March 1993, annex II.
16 Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, contained in UN Doc E/CN 4/1997/105, 18 December 1996.
17 W Vandenhole 'An Optional Protocol to the International Covenant on Economic, Social and Cultural Rights' para 36, Working paper at the Expert Seminar on An Optional Protocol to the International Covenant on Economic, Social and Cultural Rights organised by the Institute for Human Rights, Catholic University of Leuven, Belgium, 30 November 2001, http://www.law.kuleuven.be/humanrights/ebib/Proceedings30112001.doc (accessed 15 January 2009).         [ Links ]
18 See generally Resolution 2001/30 of 20 April 2001, UN Doc E/CN 4/2002/50.
19 Report of the Independent Expert on the Question of a Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, UN Doc E/CN 4/2002/57.
20 Resolution 2002/24 of 22 April 2002, UN Doc E/CN 4/RES/2002/24.
21 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, UN Doc E/CN 4/2003/53, para 76.
22 Resolution 2003/18 of 22 April 2003, UN Doc E/CN 4/2003/L 11/Add 3.
23 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, UN Doc E/CN 4/2004/44, 15 March 2004 (Report of the First Session of the OEWG) para 76.
24 Elements for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, UN Doc E/CN 4/2006/WG.23/2, 21 November 2005 (Elements Paper).
25 Resolution 1/3 of 29 June 2006, para 1.
26 Resolution on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, UN Doc A/HRC/8/L.2/Rev 1/corr 1, 18 June 2008.
27 Resolution A/C 3/63/L.47, Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, contained in UN Doc A/63/435, 28 November 2008. See also Third Committee Recommends General Assembly Adoption of Optional Protocol to International Convention on Economic, Social and Cultural Rights', UN Doc GA/SHC/3938, 18 November 2008. Fifty-two member states co-sponsored the Resolution.
28 'Closing a historic gap in human rights' UN press release http://www.unhchr.ch/huricane/huricane.nsf/0/D39BD9ED5406650F C125751C0039FE08?opendocument (accessed 15 January 2009).         [ Links ]
29 See art 18(1) OP-ICESCR.
30 Preambular para 3. In drafting the Preambular paragraphs, inspiration was drawn from the Preambles of the OP1-ICCPR and the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (OP-CEDAW).
31 Preambular para 1.
32 Preambular para 2.
33 Preambular para 5.
34 Art 4. The inclusion of this provision was proposed by the United Kingdom, Canada and New Zealand, supported by Australia, Denmark, Ireland, Japan, Norway, Poland, Sweden and the United States (see 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 Fifth Session, UN Doc A/HRC/8/7, 6 May 2008, para 22 (Report of the Fifth Session of the OEWG) para 59.
35 Art 5.
36 Art 7.
37 Art 10.
38 Arts 11 & 12.
39 Art 9 (follow-up of the views of the ESCR Committee), and art 12 (follow-up to the inquiry procedure).
40 Art 13.
41 The states that supported the inclusion of protection measures included Australia, Belgium, Canada, Chile, Egypt, France, Germany, Iran, Mexico, the Netherlands, New Zealand, Portugal, South Africa, Switzerland and the United States (see 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 Fourth Session, UN Doc A/HRC/6/8, 30 August 2007, para 119 (Report of the Fourth Session of the OEWG); and Report of the Fifth Session of the OEWG, para 103).
42 Art 2.
43 The ESCR Committee favours a comprehensive approach (see 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, UN Doc E/CN 4/2006/47, 14 March 2006 (Report of the Third Session of the OEWG) para 32.
44 The states are 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 (see Report of the Fourth Session of the OEWG, para 37).
45 Report of the Fourth Session of the OEWG, para 38.
46 Angola, Argentina, Azerbaijan, Belgium, Bolivia, Brazil, Burkina Faso, Chile, Congo, Costa Rica, Croatia, Cuba, Ecuador, Egypt, Ethiopia, Finland, France, Guatemala, Italy, Iran, Liechtenstein, Madagascar, Mexico, Nigeria, Norway, Morocco, Peru, Portugal, Senegal, Slovenia, Spain, South Africa, Spain, Sweden, Switzerland, Uruguay and Venezuela (see Explanatory Memorandum, Annex II to the Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights prepared by the Chaiperson-Rapporteur, Catarina de Albuquerque, UN Doc A/HRC/7/WG 4/2, 23 April 2007, paras 4 & 15 (Explanatory Memorandum)); Report of the Fourth Session of the OEWG, para 33. It should be noted that France initially supported an opt-out approach, but was later persuaded to support the comprehensive approach; and Norway took a retrogressive step at the 5th session of the OEWG by shifting from supporting a comprehensive approach to an à la carte approach at the 5th session of the OEWG.
47 Report of the Fourth Session of the OEWG, para 33.
48 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, UN Doc E/CN 4/2005/52, 10 February 2005 (Report of the Second Session of the OEWG), para 37.
49 Joint Submission of the NGO Coalition to the 2006 Open-Ended Working Group to Consider Options for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, January 2006; see also Report of the Third Session of the OEWG, para 33.
50 L Chenwi 'First reading of the Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights' (2007) 8(4) ESR Review 22 23.         [ Links ]
51 Report of the Second Session of the OEWG, para 52.
52 Report of the Fourth Session of the OEWG, para 35.
53 Report of the Fourth Session of the OEWG, para 36.
54 Chenwi & Mbazira (n 13 above) 11.
55 Art 2.
56 The NGOs' campaign for the complaints procedure for economic, social and cultural rights has been mobilised mainly through the NGO Coalition for an Optional Protocol (NGO Coalition). For more information on the NGO Coalition and its work, see http://www.opicescr-coalition.org (accessed 15 January 2009).
57 Belarus, Burkina Faso, China, Egypt (on behalf of the African Group), Ethiopia, Morocco and Russia proposed that individuals must give prior 'expressed' consent before communications can be brought on their behalf. However, Ecuador, Peru and the NGO Coalition opposed this submission, arguing that it might be difficult to obtain express consent in certain cases (see Report of the Fourth Session of the OEWG, para 43). It should be noted that at the 5th session of the OEWG, Egypt (on behalf of the African Group) together with Finland, Italy, Lichtenstein, Mexico, the Netherlands, Portugal and NGOs supported the retention of the exception to the consent requirement (see Report of the Fifth Session, para 37).
58 Art 1 OP1-ICCPR.
59 E de Wet 'Recent developments concerning the Draft Optional Protocol to the International Covenant on Economic Social Cultural Rights' (1997) 13 South African Journal on Human Rights 514 533.         [ Links ]
60 Art 3 of the Draft OP-ICESCR, UN Doc A/HRC/6/WG 4/2, 23 April 2007.
61 The states that called for its deletion included Algeria, Australia, Belarus, Burkina Faso, China, Colombia, Ecuador, Egypt (on behalf of the African Group), Greece, India, Japan, Morocco, Nigeria, Norway, the Republic of Korea, Russia, Senegal, Tanzania, the United Kingdom, Ukraine, the United States and Venezuela (see Report of the Fourth Session of the OEWG, para 47).
62 De Wet (n 59 above) 533.
63 See S Liebenberg 'The protection of economic and social rights in domestic legal systems' in Eide et al (n 2 above) 55; ESCR Committee General Comment 9 on the domestic application of CESCR, para 4, UN Doc E/C 12/1998/24, 3 December 1998.
64 Art 3.
65 See art 4(1) of OP-CEDAW; see also art 2(d) of the Optional Protocol to the Convention on the Rights of Persons with Disabilities, 2007 (not yet in force).
66 Report of the Fourth Session of the OEWG, para 59.
67 Viljoen has elucidated on the purpose of the requirement to exhaust domestic remedies when discussing the protective mandate of the African Commission (see F Viljoen International human rights law in Africa (2007) 336).         [ Links ]
68 Viljoen (n 67 above) 336. See also T Zwart The admissibility of human rights petitions: The case law of the European Commission of Human Rights and the Human Rights Committee (1994) 188,         [ Links ] stating that 'a remedy is considered available only if the petitioner can make use of it in the circumstances of his case'.
69 See Media Rights Agenda & Others v Nigeria (2000) AHRLR 200 (ACHPR 1998) paras 49-5; Social and Economic Rights Action Centre (SERAC) & Another v Nigeria (2001) AHRLR 60 (ACHPR 2001) paras 37 & 41 (SERAC case).
70 Art 46(2) of the American Convention on Human Rights 1969.
71 A Rosas & M Scheinin 'Implementation mechanisms and remedies' in Eide et al (n 2 above) 452. See also Report of the Second Session of the OEWG, para 43. In fact, at the 5th session of the OEWG, some states proposed that the list of remedies be specified instead of simply referring to 'domestic remedies'. These included Denmark, Greece, New Zealand, Poland and the United Kingdom, who wanted the list of remedies to be mentioned - 'judicial, administrative and other' remedies (see Report of the Fifth Session of the OEWG, para 47). This proposal did not receive much support as it was seen as unnecessary.
72 See art 5(2)(b) of OP1-ICCPR.
73 See, eg, Brough v Australia, Communication 1184/2003, UN Doc CCPR/ C/86/D/1184/2003, 27 April 2006, para 8.6.
74 See generally SS v Norway, Communication 79/1980, UN Doc CCPR/C/15/D/79/1980, 2 April 1982.
75 ESCR Committee General Comment 9, para 9. It should be noted that parliamentary procedures do not, however, qualify as judicial or quasi-judicial remedies, even though they might end up providing redress to a complainant (see Report of the Second Session of the OEWG, para 92).
76 The European Court of Human Rights, eg, has on several occasions emphasised that 'the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case'. Hence, 'the court must take realistic account not only of the existence of formal remedies in the legal system of the contracting state concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant' (see, eg, Van Oosterwijck v Belgium, Application 7654/76, para 35, 6 November 1980; and Isayeva v Russia, Application 57950/00, 24 February 2005, para 153).
77 See Report of the Second Session of the OEWG, para 43.
78 Art 3(2)(a) OP-ICESCR.
79 The Netherlands, Peru, South Africa and Spain, eg, proposed extending the time limit to one or three years (see Report of the Fourth Session of the OEWG, para 61).
80 This criterion is derived from art 56(4) of the African Charter on Human and Peoples' Rights, 1982 (African Charter), a proposal that was put forward by the NGO Coalition (see Report of the fourth Session of the OEWG, para 61).
81 Art 3(2)(b-g) OP-ICESCR.
82 These states include Angola, Egypt, Ethiopia, Nigeria and the United Kingdom, which had initially indicated that victims should be free to decide which procedure to use (see Report of the Third Session of the OEWG, para 52; and Report of the Fourth Session of the OEWG, para 62).
83 Report of the Third Session of the OEWG, para 52.
84 These states include Argentina, Azerbaijan, Belgium, Norway, Peru and Portugal (see Report of the Third Session of the OEWG, para 54; and Report of the Fourth Session, para 62).
85 Report of the Third Session of the OEWG, para 54.
86 Viljoen (n 67 above) 326.
87 These states include Angola, Argentina, Belgium, Brazil, Canada, Chile, Ecuador, Finland, France, Liechtenstein, Mexico, Morocco (on behalf of the African Group), Portugal, Russia, Spain, Switzerland, Uruguay and Venezuela (see Report of the Third Session of the OEWG, para 65; Report of the Fourth Session of the OEWG, para 67; and Report of the Fifth Session of the OEWG, para 60). It should be noted that Germany, the Republic of Korea and Switzerland proposed the inclusion of interim measures in the rules of procedures instead.
88 In initial drafts, the urgency of interim measures was not emphasised. Consequently, the NGO Coalition, supported by Colombia and Uruguay, amongst others, argued that interim measures should be considered with urgency in order to protect victims of violations (see Chenwi (n 50 above) 24).
89 Proposed by Morocco, supported by China, Ethiopia, India and Nepal (see Report of the Third Session of the OEWG, para 137; Report of the Fourth Session of the OEWG, para 72; and Report of the Fifth Session of the OEWG, para 62).
90 Explanatory Memorandum paras 18 & 19.
91 Australia, Belgium, Egypt, France, South Africa, Switzerland, Syria and Venezuela (see Report of the Fourth Session of the OEWG, para 72; and Report of the Fifth Session of the OEWG, para 62).
92 Report of the Third Session of the OEWG, para 66.
93 Brazil, Canada, Mexico, Poland and the United Kingdom (see Report of the Third Session of the OEWG, para 66; and Report of the Fourth Session of the OEWG, paras 74 and 182).
94 Report of the Fifth Session of the OEWG, para 66.
95 See, generally, J Pasqualucci 'Interim measures in international human rights: Evolution and harmonisation' (2005) 38 Vanderbilt Journal of Transnational Law 1.         [ Links ]
96 See Viljoen (n 67 above) 326-329.
97 Art 7(2) OP-ICESCR.
98 Report of the Fourth Session of the OEWG, para 86.
99 These states include Argentina, Australia, Azerbaijan, Brazil, Canada, Colombia, Denmark, Ecuador, Ethiopia, Finland, France, Iran, Mexico, Morocco, the Netherlands, Russia, South Africa, Spain, Switzerland, the United Kingdom and Venezuela (see Report of the Third Session of the OEWG, para 64; Report of the Fourth Session of the OEWG, paras 80 & 183.
100 These states are China, India, Sweden and the United States (see Report of the Fourth Session of the OEWG, para 81; and report of the Fifth Session of the OEWG, para 72.
101 Report of the Third Session of the OEWG, paras 64 & 185.
102 Australia, China, the United Kingdom, the United States and Venezuela, amongst others (see Report of the Fourth Session of the OEWG, paras 87 & 185).
103 Art 8(3).
104 Art 8(4).
105 Report of the Third Session of the OEWG, para 60.
106 Report of the Fourth Session of the OEWG, para 107.
107 See Steiner et al (n 7 above) 895.
108 The legal basis for oral presentations is found in art 46 of the African Charter, which allows the African Commission to resort to any appropriate method of investigation and hear from any other person capable of enlightening it. See R Murray 'Decisions by the African Commission on individual communications under the African Charter on Human and Peoples' Rights' (1997) 46 International and Comparative Law Quarterly 412 427.         [ Links ]
109 Art 5(1) of OP1-ICCPR states: 'The Committee shall consider communications received under the present Protocol in the light of all written information made available to it by the individual and by the state party concerned.'
110 Art 8(1) OP-ICESCR.
111 Art 10(1)(g) OP-ICESCR.
112 Art 8(2) of OP-ICESCR as well as art 5(3) of OP1-ICCPR read: 'The Committee shall hold closed meetings when examining communications under the present Protocol.'
113 Argentina, Belgium, Brazil, Chile, Finland, Germany, Italy, Nigeria, Poland, Slovenia, Spain and Switzerland. Ethiopia proposed adding a reference to UN-specialised agencies (see Report of the Third Session of the OEWG, para 61; Report of the Fourth Session of the OEWG, paras 90 & 91).
114 Art 8(3) OP-ICESCR.
115 Report of the Fifth Session of the OEWG, para 175.
116 Belgium, Chile, Finland, Germany, Mexico, the Netherlands, Portugal, Slovenia and Spain (see Report of the Fourth Session of the OEWG, para 94). The NGO Coalition also supported the use of the standard of reasonableness but suggested, for purpose of clarification, the addition of 'effectiveness' (see Joint Submission of the NGO Coalition to the 2008 Open-Ended Working Group to consider options for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, February 2008).
117 For the various instances in which the concept has been used, see generally 'The use of the "reasonableness" test in assessing compliance with international human rights obligations' UN Doc A/HRC/8/WG 4/CPR.1, 1 February 2008.
118 The South African Constitutional Court's jurisprudence is to the effect that, in order for measures to be reasonable, they must aim at the effective and expeditious progressive realisation of the right in question, within the state's available resources for implementation. The measures must be comprehensive, coherent, inclusive, balance, flexible, transparent, be properly conceived and properly implemented, and make short, medium and long-term provision for those in desperate need or in crisis situations. The measures must further clearly set out the responsibilities of the different spheres of government and ensure that financial and human resources are available for their implementation. See L Chenwi 'Putting flesh on the skeleton: South African judicial enforcement of the right to adequate housing of those subject to evictions' (2008) 8 Human Rights Law Review 105 119.         [ Links ]
119 Azerbaijan, Denmark, Nigeria, Norway and Russia (see Report of the Fourth Session of the OEWG, para 94).
120 Report of the Fourth Session of the OEWG, paras 95 & 95.
121 See Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1 KB 223 230.         [ Links ]
122 China, India, Japan, Norway, Poland and, surprisingly, the United Kingdom, which had earlier shown support for the 'reasonableness' standard (see Report of the Fourth Session of the OEWG, paras 94 & 95).
123 Belgium, Ethiopia, Mexico, Portugal, Slovenia (see Report of the Fourth Session of the OEWG, para 95).
124 Austria, Canada, Denmark, Greece, Italy, Ireland, Japan, Netherlands, New Zealand, Norway, Poland, the Sweden, Turkey, the United Kingdom and Venezuela (see Report of the Fourth Session of the OEWG, para 96; Report of the Fifth Session of the OEWG, paras 91, 145 & 230).
125 The states that were not in support of the reference to margin of appreciation include Argentina, Bangladesh, Belgium, Chile, Costa Rica, Ecuador, Finland, France, Germany, India, Liechtenstein, Mexico, Portugal, the Russian Federation and Sri Lanka (see Report of the Fourth Session of the OEWG, para 100; Report of the Fifth Session of the OEWG, paras 91 & 171).
126 Art 8(4) OP-ICESCR.
127 Eg, art 41 of CCPR, art 21 of CAT, art 76 of CRMW and art 11 of the International Convention on the Elimination of All Forms of Racial Discrimination, 1965 (CERD).
128 Viljoen (n 67 above) 35.
129 Russia had reservations; and China, Ecuador, Ethiopia, Japan, Norway, New Zealand, Senegal, Syria, Russia and the United Kingdom were not in support of its inclusion (see Report of the Fourth Session of the OEWG, para 109; Report of the Fifth Session of the OEWG, paras 95 & 177).
130 Argentina, Egypt, France, Ghana, Poland, Mexico, the Netherlands, South Africa, Spain and Venezuela as well as the NGO Coalition (see Report of the Fourth Session of the OEWG, para 109; Report of the Fifth Session of the OEWG, para 94).
131 Art 10(2) OP-ICESCR.
132 See art 20 of OP-CAT and arts 8, 9 & 10 of OP-CEDAW
133 Report of the Fourth Session of the OEWG, para 111.
134 Austria, Brazil, Chile, Costa Rica, Ecuador, Finland, Liechtenstein, Portugal, Senegal, South Africa, Sweden (see Report of the Fourth Session of the OEWG, para 111).
135 Australia, China, Egypt, India, Nigeria, Poland, Russia and the United States.
136 Report of the Fourth Session of the OEWG, para 112.
137 Report of the Fourth Session of the OEWG, para 113.
138 Art 11(8) OP-ICESCR.
139 Art 9(3) OP-ICESCR.
140 Art 5(4) OP1-ICCPR.
141 Rules of Procedure of the Human Rights Committee, UN Doc CCPR/C/3/Rev 6 of 24 April 2001.
142 De Wet (n 59 above) 541.
143 Art 14(1) OP-ICESCR.
144 See, eg, Explanatory Memorandum, para 35 22.
145 Art 11(2) CESCR.
146 General Comment 3 on the nature of state parties' obligations, 14/12/1990, para 14, UN Doc E/1991/23. In the same General Comment, the ESCR Committee also observed that the phrase 'to the maximum of its available resources' was intended by the drafters of CESCR to refer to both the resources existing within a state and those available from the international community through international co-operation and assistance (para 13).
147 General Comment 2 on international technical assistance measures, 02/02/1990, para 3, UN Doc E/1990/23.
148 See art 3(d) of the Constitutive Act of the AU; art 2(1)(e) of the Charter of the Organisation of African Unity (OAU). In addition, African states have an obligation to promote international (economic) co-operation (see the Preamble to and art 21(3) of the African Charter).
149 Argentina, Austria, Belgium, Finland, France, Germany, Italy, Japan, the Netherlands, New Zealand, Norway, Poland, Slovenia, Sweden, Switzerland and the United Kingdom (see Report of the fourth Session of the OEWG, para 122).
150 Argentina, Australia, Bangladesh, Belgium, Germany, India, Sweden and Switzerland, for instance, supported the provision of assistance to victims. Russia supported assistance to both victims and states (see Report of the fifth Session of the OEWG, paras 184 & 192).
151 Art 26 OP-CAT.
152 The fund is not yet formally established by the General Assembly.
153 Art 79 Rome Statute.
154 Algeria, Austria, Argentina, Bangladesh, Belarus, Egypt (on behalf of the African Group), Germany, Slovenia and Ukraine (see Report of the Fourth Session of the OEWG, para 127; and Report of the Fifth Session of the OEWG, paras 107, 114, 115, 117 & 183).
155 Austria, Australia, Belgium, Canada, Denmark, France, Liechtenstein, Netherlands, New Zealand, Poland, Sweden, Switzerland, United Kingdom and the United States (see Report of the Fourth Session of the OEWG, para 127; and Report of the Fifth Session of the OEWG, paras 107, 114, 115, 117 & 183).
156 Report of the Fourth Session of the OEWG, paras 129 & 168; Report of the Fifth Session of the OEWG, para 114. The funds administered by the UN Secretary-General and the OHCHR include a Voluntary Fund for Victims of Torture, Voluntary Trust Fund on Contemporary Forms of Slavery, Voluntary Fund for Indigenous Populations, and a Voluntary Fund for Technical Co-operation in the Field of Human Rights. These funds have a specific focus, are voluntary, and most of them either provide assistance to NGOs assisting victims or assist representative organisations or communities to participate in meetings.
157 Report of the Fourth Session of the OEWG, para 130.
158 Report of the Fourth Session of the OEWG, para 165.
159 A de Zayas 'The examination of individual complaints by the United Nations Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights' in Alfredsson et al (n 10 above) 73.
160 See, eg, M Dennis & D Stewart 'Justiciability of economic, social and cultural rights: Should there be an international complaints mechanism to adjudicate the rights to food, water, housing and health' (2004) 98 American Journal of International Law 462-515.         [ Links ]
161 Report of the First Session of the OEWG, paras 23 & 67-70.See also P Alston 'Establishing a right to petition under the Covenant on Economic, Social and Cultural Rights' in Collected Courses of the Academy of European Law (1995) 107,         [ Links ] quoted in H Steiner et al International human rights In context: Law, politics, morals (2007) 363-364.         [ Links ]
162 For additional reading on the challenges to the implementation of the OP-ICESCR, see C Golay 'The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights' CETIM Critical Report No 2, November 2008 http://www.cetim.ch/en/documents/CETIM-Report-2.pdf (accessed 20 January 2009).         [ Links ]
163 UN High Commissioner for Human Rights, Louise Arbour, when congratulating HRC on its adoption of OP-ICESCR (Press release, 2008).