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 Vote Seven Amendments to Death Penalty Moratorium Draft
In what some called a great step towards the full realization of human rights, delegates to the Third Committee (Social, Humanitarian and Cultural) approved a draft resolution by consensus today that would have the General Assembly adopt a new Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, which would establish a communications procedure for alleged violations of rights under the Covenant.
Also today, the Committee began its consideration of a draft resolution on a moratorium on the use of the death penalty, rejecting seven proposed amendments to the text. It also approved three other draft resolutions, by consensus, on questions relating to refugees, the right to self-determination and on torture and other cruel, inhuman or degrading treatment. A draft resolution on the inadmissibility of certain practices that contribute to fuelling contemporary forms of racism, racial discrimination, xenophobia and related intolerance was also approved, by a recorded vote of 122 in favour, 1 against (United States), and 54 abstentions (Annex I).
The new Optional Protocol to the International Covenant on Economic, Social and Cultural Rights was the result of five years of intensive work, followed by intensive consultations, according to Portugal’s representative, the main sponsor of the draft resolution on the issue. Its adoption would be significant in that it would reset the balance between economic, social and cultural rights and civil and political rights, which already has a similar individual complaint mechanism in place. The text before the Committee was a good compromise, based on years of negotiations. While he understood that some States were not in a position to become party to the instrument at the current time, he expressed hope that no obstacles would be put in place for those that wished to have such a mechanism.
Many delegates, speaking before and after action on the draft, said they did not want to be that obstacle, or stand in the way of such a mechanism. However, a number of representatives expressed concerns over whether economic, social and cultural rights were sufficiently suited to an individual complaints mechanism and if they could be held to account in the same way as civil and political rights. As the representative of Poland put it, “International judicial and quasi-judicial procedures are not well suited for the enforcement of many social rights. They invite rulings based on political preferences of the judges, rather than on strict law.”
Denmark’s delegate, taking it one step further, suggested that the “vague and broad nature” of those rights might, down the road, constitute a risk that the Committee on Economic, Social and Cultural Rights would end up functioning as a legislator, determining the allocation of State resources within that sphere. Other delegates raised similar concerns, while a number of others drew attention to the right to self-determination and whether, as a collective right, it should be addressed within the draft optional protocol’s individual complaints mechanism. Despite the differing opinions on the draft, delegates, in a spirit of consensus, chose to approve it without a vote.
Such consensus proved difficult to achieve as the Committee began its deliberations on a text on a moratorium on the use of the death penalty. The representative of Chile, the main sponsor of the draft, said that the text of the resolution had been drafted to promote constructive dialogue and to minimize confrontation. The substance of the text focused on the moratorium, reaffirming last year’s General Assembly resolution 62/149, and paying heed to the global trend towards the elimination of the death penalty. It also welcomed the Secretary-General’s report on the subject and would have the Assembly take up the subject again in two years.
However, the representative of Singapore, expressing a view held by many delegates, said that the draft still sought to pass judgement on the issue and on countries that chose to retain the death penalty. For instance, it would seek to reaffirm last year’s extremely divisive and contentious resolution -- whereas the word “reaffirm” was usually used sparingly, and then only for consensus resolutions. As such, Singapore joined delegates from Egypt, Barbados, and Botswana in introducing seven amendments to the draft, including one which called for the word “reaffirming” to be changed to “recalling”. That draft amendment was rejected by a recorded vote of 87 against to 60 in favour, with 22 abstentions (Annex III).
Six other draft amendments -- which, among other things, reaffirmed the sovereign right of States to determine legal measures and penalties, recalled the stipulation in the United Nations Charter that nothing in the Charter would authorize the United Nations to intervene in matters within a State’s domestic jurisdiction, and requested that the issue be considered again in three years time, instead of two -- were also rejected, all by recorded votes (see Annexes II to VIII).
As the Committee approved the draft resolution on the inadmissibility of certain practices that contribute to fuelling contemporary forms of racism, the main sponsor of that text, the Russian Federation, said the draft’s co-sponsors had been deeply concerned about the rise of extremist groups, such as neo-Nazis and skinheads, who carried out acts of violence against minority groups, immigrants and others. The representative of the United States said his delegation had voted against the draft’s approval because the draft failed to appropriately distinguish between actions and statements that should be protected by freedom of expression, and actions and statements to incite hatred and violence, which should be prohibited.
A draft resolution on the universal realization of the right of peoples to self-determination was tabled by its main sponsor, Pakistan, and was approved today by consensus. The representative of Pakistan said that right was the cornerstone of the United Nations Charter and the two international covenants, and had been affirmed and upheld by various international summits, declarations and resolutions. The support shown to the resolution since its maiden introduction sent a strong message against foreign occupation.
The representative of Denmark, the main sponsor of the draft on torture and other cruel, inhuman or degrading treatment, said that people continued to be mistreated and tortured in all regions of the world, sometimes in an effort to extract information but, often, for no particular reason at all. In the face of those horrors, the United Nations had the responsibility to speak out against those acts, and he, thus, recommended the adoption of the resolution, hopefully by consensus. Delegates to the Third Committee responded by approving the draft, without a vote.
Also today, the Committee approved, by consensus, a draft resolution on the enlargement of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees, which would have the Assembly increase number of members in the Executive Committee from 76 to 78. According to Djibouti’s delegate, the draft’s main sponsors, Djibouti and the Republic of Moldova, both wanted to become members of the Executive Committee in an effort to help find sustainable solutions for internally displaced persons and refugees, worldwide.
The Committee also heard the introduction of three other draft resolutions today, on the new international humanitarian order, assistance to refugees, returnees and displaced persons in Africa, and the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, introduced by the representatives of Jordan, Mauritius and Cuba, respectively.
In other business, the Committee deferred consideration of two draft resolutions, which were expected to be acted on today, on the future operation of the International Research and Training Institute for the Advancement of Women and on trafficking in women and girls.
Also speaking on the texts of the draft resolutions and amendments acted on today were the representatives of the United Kingdom, South Africa, Norway, Argentina, Japan, New Zealand, Canada, Liechtenstein, Finland, Slovenia, Switzerland, Austria, Philippines, Turkey, Germany, Sweden, Australia, France, Ukraine, Egypt, Israel, Uganda, Jamaica, Sudan, Libya, Syria, China, Barbados, Malaysia, Timor-Leste, The former Yugoslav Republic of Macedonia, Swaziland, Mexico, Costa Rica, Angola, Colombia, Namibia, Albania, Gabon, Federated States of Micronesia, Spain, Croatia, Belize, Italy, Montenegro, Botswana, Burundi, Romania, Estonia and Uruguay.
The representatives of France, Venezuela, Afghanistan and Kyrgyzstan spoke concerning a draft resolution approved by consensus at a previous meeting, on international cooperation against the world drug problem.
The Committee will meet again at 10 a.m. on Thursday, 20 November, to take action on the draft resolution on a moratorium on the use of the death penalty, as well as several other outstanding draft resolutions.
Background
The Third Committee (Social, Cultural and Humanitarian) met today to take action on a number of draft resolutions, including a resolution on the enlargement of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees (document A/C.3/63/L.54), also expected to be introduced in the current meeting. By the terms of that text, the Assembly would decide to increase the number of members of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees from 76 to 78 States. It would further request the Economic and Social Council to elect the additional members at its resumed organizational session for 2009.
A draft resolution on the future operation of the International Research and Training Institute for the Advancement of Women (document A/C.3/63/L.14/Rev.1) was also before the Committee, for action.
The draft resolution on trafficking in women and girls (A/C.3/63/L.13/Rev.1) would have the General Assembly call upon Governments to discourage, with a view to eliminating, the demand that fosters the trafficking of women and girls and to take appropriate measures to address the factors that increase vulnerability to being trafficked, including poverty and gender inequality. At the same time, it would call upon all relevant actors to address that heightened vulnerability and associated gender-based violence. Recognizing the challenges to combating trafficking in women and girls owing to the lack of adequate legislation and implementation of existing legislation, the lack of availability of reliable sex-disaggregated data and statistics, and the lack of resources, the draft would have the General Assembly urge Governments to devise, enforce and strengthen effective measures to combat and eliminate all forms of trafficking in women and girls, to criminalize all forms of trafficking in persons, and to take all appropriate measures to ensure that victims of trafficking were not penalized for being trafficked.
Another draft resolution before the Committee would have the General Assembly adopt the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, by which States Parties to the Protocol would recognize the competence of the Committee on Economic, Social and Cultural Rights to receive and consider communications submitted by or on behalf of individuals or groups claiming to be victims of a violation of their economic, social and cultural rights. By that resolution (document A/C.3/63/L.47), the Assembly would adopt the Protocol and recommend that it be opened for signature in 2009. The text of the Optional Protocol, containing 22 articles, is annexed to the resolution.
A draft text, on the inadmissibility of certain practices that contribute to fuelling contemporary forms of racism, racial discrimination, xenophobia and related intolerance (document A/C.3/63/L.49), would have the Assembly express deep concern about the glorification of the Nazi movement and former members of the Waffen SS, including by erecting monuments and memorials and holding public demonstrations in the name of the glorification of the Nazi past, the Nazi movement and neo-Nazism, as well as by declaring or attempting to declare such members and those who collaborated with the Nazi movement as participants of national liberation movements. In turn, it would express concern at attempts to desecrate or demolish monuments erected in remembrance of those who fought against Nazism during the Second World War, as well as to unlawfully exhume or remove the remains of such persons. It would emphasize the need to take measures to end those practices, and reaffirm that States parties to the International Convention on the Elimination of All Forms of Racial Discrimination were obliged -- among other things -- to declare as a punishable offence the dissemination of ideas based on racial superiority or hatred.
A draft resolution, on the universal realization of the right of peoples to self-determination (document A/C.3/63/L.48), would have the Assembly declare its firm opposition to acts of foreign military intervention, aggression and occupation, while also calling on responsible States to cease their military intervention in, and occupation of, foreign countries and territories and all acts of repression, discrimination, exploitation and maltreatment -- particularly the brutal and inhuman methods reportedly employed for the execution of those acts against the people concerned. It would request the Human Rights Council to continue to give special attention to the violation of human rights, especially the right to self-determination, resulting from foreign military intervention, aggression or occupation.
A draft resolution, on torture and other cruel, inhuman or degrading treatment or punishment (document A/C.3/63/L.18/Rev.1), would have the General Assembly condemn any action or attempt by States or public officials to legalize, authorize or acquiesce in torture and other cruel, inhuman or degrading treatment or punishment under any circumstances, including on grounds of national security or through judicial decisions. The draft emphasizes that acts of torture in armed conflict are serious violations of international humanitarian law and, in that regard, constitute war crimes. It further emphasizes that acts of torture can constitute crimes against humanity and that the perpetrators of all acts of torture must be prosecuted and punished. The draft resolution would have the Assembly strongly urge States to ensure that no statement made as a result of torture is invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. It calls upon States parties to the Convention against Torture to fulfil their obligation to submit for prosecution or extradite those alleged to have committed acts of torture, and encourages other States to do likewise.
A draft resolution on the moratorium on the use of the death penalty (document A/C.3/63/L.19/Rev.1) and its seven amendments (documents A/C.3/63/L.62, L.63, L.64, L.65, L.66, L.67 and L.68) were also before the Committee. By the terms of that draft and its amendments, the General Assembly would recall its resolution 62/149 of December 2007 on the moratorium on the use of the death penalty, and would note the decisions taken by an increasing number of States to apply a moratorium on executions, or to restrict the application of the death penalty to the most serious crimes. While reaffirming the sovereign right of States to determine the legal measures and penalties which are appropriate to their societies, in accordance with international law, the draft text would have the Assembly request the Secretary-General to submit a report on the resolution for consideration at its sixty-sixth session, based on the information provided by Member States.
A draft resolution on national institutions for the promotion and protection of human rights (document A/C.3/63/L.23) would have the General Assembly acknowledge the role of national institutions in the strengthening of the rule of law and the promotion and protection of human rights in all sectors, and encourage cooperation with the United Nations system, as well as with the World Bank, other international financial institutions, and non-governmental organizations. It would also urge the Secretary-General to continue to give high priority to requests from Member States for assistance in the establishment and strengthening of national human rights institutions and to continue to provide the necessary assistance for holding international and regional meetings of national institutions.
The Committee was also expected to act on a draft resolution on the effective promotion of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (document A/C.3/63/L.25/Rev.1), which would have the General Assembly urge States and the international community to promote and protect the rights of persons belonging to national or ethnic, religious and linguistic minorities, through the encouragement of conditions for the promotion of their identity, the provision of adequate education and the facilitation of their participation in all aspects of the political, economic, social, religious and cultural life of society. It would also urge States to take all necessary constitutional, legislative, and administrative measures to give effect to the Declaration, and would call upon them to cooperate with the independent expert on minority issues. The draft also welcomes the establishment of the Forum on Minority Issues and all relevant actors to participate actively in its inaugural session, to be held on 15 and 16 December 2008 in Geneva.
A draft text on missing persons (document A/C.3/63/L.36) would have the Assembly call on States party to an armed conflict to take measures to prevent persons from going missing in connection with such conflict and account for persons reported missing as a result of such situations. It would further call on those States to determine the identity and fate of persons reported missing in connection with armed conflict and, to the greatest extent possible, provide their family members with information on their fate. It would further urge States to encourage intergovernmental and non-governmental organizations to provide appropriate assistance as requested by concerned States, and would welcome, in that regard, the establishment and efforts of commissions and working groups on missing persons. Without prejudice to States’ efforts to determine the fate of missing persons in connection with armed conflicts, the draft resolution would have States take appropriate steps in terms of the legal situation of missing persons and the needs of their family members -- their social welfare, financial matters, family law and property rights.
Recalling that the family, as the basic unit of society, was entitled to receive comprehensive protection and support, the draft resolution on respect for the right to universal freedom of travel and the vital importance of family reunification (document A/C.3/63/L.43) would have the Assembly call on all States to guarantee the universally recognized freedom of travel to all foreign nationals legally residing in their territory, and reaffirm that all Governments -- particularly of receiving countries -- must recognize the vital importance of family reunification and promote its incorporation into national legislation, so as to ensure protection of the unity of families of documented migrants. It would call on States to allow, in conformity with international legislation, the free flow of financial remittances by foreign nationals residing in their territory to relatives in the country of origin, and further call on States to refrain from enacting, or to repeal existing laws, that adversely affect family reunification and the right to send remittances.
A draft resolution on improving the coordination of efforts against trafficking in persons (document A/C.3/63/L.9/Rev.1), also before the Committee, would have the General Assembly call upon Governments to criminalize trafficking in persons in all its forms, to take measures to criminalize child sex tourism, and to investigate, prosecute, condemn and penalize traffickers and intermediaries, while providing protection and assistance to the victims of trafficking with full respect for their human rights. The draft would also have the Assembly invite Member States to continue consideration of the advisability of a global plan of action on preventing trafficking in persons, prosecuting traffickers and protecting and assisting victims of trafficking, which would achieve the full and effective coordination of efforts against trafficking in persons, and ensure the full and effective implementation of all legal instruments relevant to trafficking in persons. At the same time, it would request the Secretary-General to submit to the General Assembly at its sixty-fourth session a report on the implementation of the present resolution and on possible approaches to improve coordination of efforts against trafficking in persons.
The Committee was also expected to hear the introduction of three other draft resolutions, including on: the new international humanitarian order (document A/C.3/63/L.55); assistance to refugees, returnees and displaced persons in Africa (document A/C.3/63/L.58); and the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination (document A/C.3/63/L.50/Rev.1).
It was also expected to hear the continuation of the explanation of vote on the draft text on international cooperation against the world drug problem (document A/C.3/63/L.8/Rev.1), which was acted on by the Committee on 11 November, 2008. (For background, see Press Release GA/SHC/3937).
Continuation of Explanation of Vote
The Committee began by hearing the remaining explanations of action relating to a draft resolution that was considered at its previous meeting, on international cooperation against the world drug problem (document A/C.3/63/L.8/Rev.1)
The representative of France said his country had joined with the consensus on the draft resolution, which had been approved without a vote, though he expressed his delegation’s regret over the failure to reach consensus on language regarding decreasing drug use as a means of overall demand reduction. Such efforts would be complementary to other measures to treat drug users and to reduce the vulnerability of drug users. Two prior General Assembly resolutions had dealt with efforts to reduce damage related to drug use, and it was important to remember that there were real human beings who were hurt by the failure to effectively reduce drug use. Since 1988, the concept of reducing damage related to drug use had been accepted and elaborated. He expressed his delegation’s support for a focused resolution, which left out issues that were not directly related to the world drug problem, with the exception of some specific cases and countries. Overall, combating the drug problem would require multilateral cooperation, as well as an effective evaluation of comprehensive strategies, especially with respect to alternative programmes.
The representative of Venezuela expressed appreciation about the consensus reached on the resolution, but said he had some reservations regarding preambular paragraph 6 and operative paragraph 30 of the text. He said he saw no direct, permanent links between terrorism and transnational crime, because each was premised on different motives. Also, the text had not recognized the principle of due process and innocent until proven guilty.
The representative of Afghanistan said her country had welcomed the adoption of the resolution by consensus, and thanked those that had facilitated negotiations. She expressed gratitude to all delegates that had supported Afghanistan’s position, which had contributed to a text that was balanced and comprehensive. Her Government shared the concerns of the international community regarding the global drug problem and was fully committed to responding to the challenges posed, as they related to Afghanistan. The question of illegal drugs was a major challenge to the country’s search for lasting solutions regarding security, development and rule of law, and also posed risks to the wider region.
She said her country had made progress in damping down the production and trafficking of drugs in its territory. The national drug control strategy had succeeded in reducing the amount of opium poppies harvested in Afghanistan. A document of the United Nations Office on Drugs and Crime (UNODC) had reported that opium growth had seen a 19 per cent drop, and opium production had dropped 6 per cent last year. That result was remarkable, given that only six of the 34 provinces were covered by the strategy in 2006. Now, more provinces were covered.
She said that the present forum was not the appropriate venue for discussing the drug problem in Afghanistan, and that the body in Vienna was more appropriate. The goal, at present, was to strengthen international cooperation at the global level, which necessitated a multilateral approach and based on the principle of a common and shared responsibility. Equal attention should be paid to both supply and demand. The resolution would have been out of balance if it had included the paragraph on her country. She noted that, last week, the General Assembly had adopted a resolution touching on Afghanistan’s development and had touched on the drug trade. It had been an opportunity for delegations to renew their support for her country’s reconstruction efforts, of which the problem of drugs was a part. The report from the UNODC had said that 98 per cent of opium plants were grown in Taliban-controlled provinces. A discussion on drugs in Afghanistan was taking place within the working group of the General Assembly on Afghanistan, and focused on holistic solutions. It was unfortunate that no compromise could be found with the Russian Federation on the issue of her country being included in the text.
The representative of Kyrgyzstan said that, over the years, her delegation had co-sponsored the draft resolution and she regretted that, this year, it had been unable to do so before its approval. However, she hoped that, before the draft went to the General Assembly, her delegation’s name would be included as a co-sponsor.
The Secretariat duly took note of the request.
Introduction of Resolutions
The representative of Djibouti, also speaking on behalf of the Republic of Moldova, introduced the draft resolution on the enlargement of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees (document A/C.3/63/L.54), which was aimed primarily at increasing the number of members in the Executive Committee, from 76 to 78. She noted that the draft also requests the Economic and Social Council to elect the additional members at its resumed organizational meeting in 2009.
Preserving the rights of internally displaced persons and refugees was a high priority for the Governments of Djibouti and the Republic of Moldova, and that was why they were presenting the resolution to enlarge the size of the Committee, she said. Due to its important role in the international protection of displaced persons and refugees, both Djibouti and the Republic of Moldova wanted to become members of the Executive Committee. Both countries were party to the relevant international conventions and protocols, as well as regional instruments. Indeed, the Republic of Moldova was a privileged destination for asylum-seekers across the world, and Djibouti had been a “natural haven” for thousands of refugees over the years. The membership of the two countries to the Executive Committee would help contribute to the overall efforts of the international community to help the lives of internally displaced persons and refugees, specifically in terms of finding sustainable solutions for those groups on regional and international levels.
Introducing the draft resolution on a new international humanitarian order (document A/C.3/63/L.55), the representative of Jordan said that her delegation had been tabling similar resolutions since 1981, due to the high priority it placed on alleviating the suffering of people worldwide, and based on the principle that such alleviation was one of the main responsibilities of States. This year’s resolution focused on international, regional and national efforts to address international emergencies and highlighted the role of non-governmental organizations and civil society, among other relevant actors. She thanked participants of the informal consultations for their contributions to the draft text. After making one minor oral revision, she expressed her delegation’s hope that the draft resolution would be approved by the Committee, without a vote.
The Committee then turned to the draft resolution on assistance to refugees, returnees and displaced persons in Africa (document A/C.3/63/L.58), which was introduced by the representative of Mauritius on behalf of the African Group. He said the annual resolution addressed the needs of 15 million refugees, returnees and displaced persons in Africa, and would have the Assembly express concern over their plight. Although the number of displaced persons was reported to have decreased recently, it was nevertheless distressing to see the growing number of displaced persons arising out of conflict. The text paid tribute to the ongoing process by the African Union to produce a convention for the protection and assistance of displaced persons, and which underscored protection for women and children and refugees. He voiced hope that the text would enjoy the same consensus this year as it had enjoyed over the years.
Finally, the Committee heard the introduction of the draft resolution on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination (document A/C.3/63/L.50/Rev.1) by the representative of Cuba. She said the subject of mercenaries was highly relevant to current times. Some States continued to use mercenaries as a means of toppling legitimate Governments, or as a way to confront individuals who were fighting the just cause of national liberation. The text would have the Assembly urge Member States to be vigilant in the use of mercenaries and would call on legislative measures to be introduced by States to prevent the training, financing, grouping or transit of mercenaries on their territories, and condemned the attitude of impunity towards those undertaking such activities. It would call on the working group to continue work undertaken by the Special Rapporteur to strengthen the international legal framework on that issue, while bearing in mind the legal definition of mercenaries as proposed by the previous Special Rapporteur in his report to the then Human Rights Commission at its sixtieth session. She drew attention to some changes in the text, as reflected in Revision 1, as proposed by South Africa. They touched on the work of the working group; the need to look into the root causes and political motivation behind mercenary-related activities; and on efforts by the working group to continue its work on developing a possible text touching on the further protection of human rights as it related to mercenary activities.
Action on Draft Resolutions
Moving to take action on the draft resolution introduced by Djibouti, on the enlargement of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees (document A/C.3/63/L.54), the CHAIR informed the Committee that the draft contained no programme budget implications.
The draft resolution was approved, without a vote.
Speaking after action, the representative of Djibouti, also speaking on behalf of the Republic of Moldova, expressed her delegation’s appreciation for the approval of the resolution by consensus.
The CHAIR then moved to consideration of the draft resolution on the future operation of the International Research and Training Institute for the Advancement of Women (document A/C.3/63/L.14/Rev.1), which also contained no programme budget implications.
As the revised text was not available, the Chair informed the Committee that its consideration would be deferred to a future meeting.
Moving to the draft resolution on trafficking in women and girls (A/C.3/63/L.13/Rev.1), the representative of the main sponsor of the draft, the Philippines, said that consultations on the draft were ongoing, particularly in regard to operative paragraph 12. As such, she requested that the consideration of the draft be pushed back.
The CHAIR took note of the request and said the draft would be considered at the Committee’s planned Thursday, 20 November, meeting.
Moving on to the next draft text, on the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (document A/C.3/63/L.47), the Secretary of the Committee announced that adoption of that text would produce estimated programme budget implications of $15,900 in 2009, which would be met within existing resources, and a further $248,600 for the 2010-2011 biennium, which would be considered within the context of the proposed budget for that biennium.
Those estimates were based on the assumption that the optional protocol would enter into force in the latter part of 2009 or early 2010, and that a signing ceremony would be held in Geneva at that time, which would require conference services and interpretation, as well as the travel of one staff from the United Nations Office of Legal Affairs. He said that during the 2010-2011 biennium, it was expected that the Committee would begin to receive communications, thus requiring some Secretariat support and funding for inquiry procedures (which was likely to include country visits).
Just before taking action, the representative of Portugal, the main sponsor of that draft, said adopting the optional protocol would create a communications procedure for alleged violations of rights contained in the Covenant on Economic, Social and Cultural Rights, similar to the one used in the context of the Covenant on Civil and Political Rights. The adoption of such a protocol would be significant, because it would reset the balance between those two sets of rights. It would give concrete meaning to the proclamation that human rights were universal and interdependent, and that all rights should be given the same emphasis. It was by hearing individual complaints that those rights would be given meaning. In adjudicating the individual cases, international norms that might seem general and abstract would be put to practical effect.
He said it would not have been possible to produce an optional protocol without the contribution of States, non-governmental organizations and others. It was the result of five years of intensive work, which had been followed by intensive consultations, including the drafting of several resolutions relating to the protocol. The text before the Committee was a good compromise. He understood that some States were not in a position, at the moment, to envisage becoming party to the instrument, but he expressed hope that no obstacles would be put in place for those that wished to have such a mechanism. He appealed to all States that were generally interested in promoting human rights to enable the General Assembly to give voice to victims of violations of those rights by adopting the proposed resolution. He hoped that the protocol would be adopted by consensus.
Making a general statement before taking action, the representative of the United States said he intended to join consensus, and extended his congratulations to those that led the negotiations on the text, even though his country had been sceptical about the endeavour, at first. He said he had recognized that a majority of countries supported the elaboration of such a protocol and would not block consensus, despite concerns on the final text. He understood that some States viewed the absence of a complaints procedure as relegating economic, social and cultural rights to second class status. That view was premised on the notion that those rights were identical to civil and political rights. While it was true that civil and political rights and economic, social and cultural rights were equally important, they were fundamentally different in a legal sense. The Covenant on Economic, Social and Cultural Rights recognized that those rights were progressively realized in accordance with available resources, which was not the case with civil and political rights. It might not be easily apparent when those rights were violated or if they were not satisfactorily achieved, making it difficult to adjudicate cases of alleged violations.
Nevertheless, he would not stand in the way of those that wanted a non-binding procedure, as set out in the protocol, although he noted that experts would struggle to adjudicate cases in a manner that respected the sovereign rights of countries.
The representative of the United Kingdom expressed her delegation’s concerns on certain aspects of the draft optional protocol. All human rights were indivisible and mutually reinforcing. However, economic, social and cultural rights did not lend themselves to third party adjudication in the same way as civil and political rights did. Therefore, her delegation had reservations regarding the individual complaint mechanism. Addressing a number of the articles of the draft protocol, she expressed her view that the Committee should not second guess a State’s reasonable policy choices. As well, in terms of the language regarding “all available domestic remedies” needing to be exhausted, she suggested that such language should mean the exhaustion of all available judicial and other remedies, notwithstanding the need to have those spelled out in the text.
In terms of the amendments made to articles 1 and 2, allowing individuals to bring complaints and allowing the Committee to investigate complaints, she said that previous language in those articles had been more clear, and her delegation understood that, with the current language, the rights referred to in those articles were those contained in part III of the Covenant. The United Kingdom supported the decision of the Human Rights Committee not to examine individual complaints in regard to the right to self-determination, and the Committee on Economic, Social and Cultural Rights should do the same. Finally, she expressed her delegation’s concern over the amendments made by a smaller group of States within the wider group, prior to the text being presented to the Human Rights Council.
The representative of Denmark expressed his delegation’s commitment to the full realization of the economic, social and cultural rights but, as expressed throughout the negotiations on the draft optional protocol, Denmark was very sceptical towards the creation of an individual complaints mechanism for the Covenant. The majority of the rights in the Covenant did not carry immediate legal effect and, considering the vague nature of the rights and the principle of progressive realization, Denmark believed that the majority of the rights were insufficiently judiciable and less suited to form the basis of an individual complaints mechanism. There was a sincere risk that the Committee would end up functioning as a legislator in the area of economic, social and cultural rights, and determining the allocation of States parties’ resources within that sphere. The allocation of resources within the economic, social and cultural sphere was a national matter. That said, considering the wish of a significant number of States to see the protocol adopted, Denmark would not insist on bringing the protocol to a vote.
The representative of South Africa conveyed her delegation’s position that all human rights were inextricably linked and civil and political rights were meaningless, if not underpinned by economic, social and cultural rights. However, she expressed her delegation’s belief that the transfer of competence from the Economic and Social Council should be made to the Committee on Economic, Social and Cultural Rights, to ensure that the inequalities that existed between the two Covenants could be addressed in comprehensive manner. South Africa had played a positive role in elaborating the draft optional protocol and, in that regard, she extended her delegation’s sincere gratitude to the Portuguese delegation for bringing the resolution to the table.
Norway’s delegate expressed concerns with the draft optional protocol. The Norwegian Government considered the implementation of economic, social and cultural rights as important as the implementation of civil and political rights. Though the question of judiciability on a national level was not, in itself, a problem for Norway, some of the rights set out in the International Covenant on Economic, Social and Cultural Rights were vaguely worded and, therefore, did not lend themselves to third party adjudication in the same way as certain other rights. The issue of interim measures was also of concern and it was necessary to underline the non-legally binding character of requests for interim measures. Another concern related to future interference with the State’s broad margin of appreciation under the Covenant, especially with regard to the implementation of covenant rights above the so-called minimum standards. Having laid out its concerns, Norway would, however, join the consensus.
The draft resolution was then approved, without a vote.
Speaking after action, the representative of Argentina said that there had been international consensus on the universality and indivisibility of human rights, as expressed in the Vienna Programme of Action. As such, the obligation to respect economic, social and cultural rights was equal to the obligation to respect civil and political rights. That said, the system of individual complaints as included in the draft optional protocol should not be applicable to collective rights, such as the right to self-determination.
The representative of Japan said that his delegation had expressed concern over the amendments made immediately prior to the optional protocol’s adoption by the Human Rights Council. Those amendments had been made without the proper consultation. Though his delegation was not fully supportive of the draft, in the spirit of consensus, it had not objected to its approval without a vote. His delegation would consider becoming party to the protocol after enough time had passed to see how the protocol would be implemented.
The representative of New Zealand said she had been pleased to join consensus, and that her country was committed to the progressive realization of the rights referred to in that text. All human rights were universal and indivisible, and required equal observance by States parties to the two Covenants. Those that crafted the text had sought to achieve a practical and workable instrument, building on other well-functioning procedures, for considering communications in their appropriate context and for providing a timely response to those communications. The Protocol was specific in scope and its procedures would not burden the Committee or States in carrying out reporting obligations. It granted discretion to the Committee in considering communications, and would enhance its capacity to deal with issues brought before it in a timely and effective manner, while safeguarding and monitoring all violations of human rights.
She wished to place on record the following points: in relation to article 8, which recognized that States may employ a range of policy measures and may determine the best use of resources to meet its obligations progressively, it did not give the Committee any scope to second guess the policies of Governments. In relation to articles 2 and 11, she said self-determination was defined as a collective right and, accordingly, could not be invoked in an individual complaints procedure. She called on the Committee to follow the practice adopted by the Human Rights Committee in that regard. She expressed hope that the communications procedure would help enhance observation by States parties of their obligation under the Covenant.
The representative of Canada said that, as a State party to the two international covenants on human rights, she was committed to the progressive realization of economic, social and cultural rights, as well as civil and political rights. While recognizing that all human rights were universal, individual, interdependent and interrelated, her Government had consistently raised concerns regarding a proposed communications procedure under the Covenant on Economic, Social and Cultural rights. The Optional Protocol did not take into account the deference accorded to States when assessing policy choices and how to allocate resources. Moreover, some rights contained in the Covenant were defined in a broad manner and could not be subjected easily to quasi-legal assessments.
In addition, she said part I of the Covenant was not included within the scope of the Optional Protocol, and the Committee on Economic, Social and Cultural Rights should follow the view of the Human Rights Committee in declining to consider communications relating to article 1 of the two Covenants. Indeed, the right to self-determination in part I of the Covenant remained subject to the State reporting process as set out by the Covenant, which Canada supported. It was in light of the importance of the Protocol to many States that her Government had joined consensus.
The representative of Liechtenstein said that all human rights should be promoted and protected by the appropriate legal mechanisms at the national and international level. As a strong supporter of the United Nations treaty body system, his Government had supported the consensus, but had concerns that prevented them from becoming co-sponsors. Article 2 had fallen victim to last-minute changes, resulting in compromised language that lacked clarity and did not apply to communications on economic, social and cultural rights as set out in part III of the Covenant. The Committee had the mandate to examine measures taken by States to implement the rights in part II, including the equal rights of men and women to the enjoyment of economic, social and cultural rights. That followed from article 8, sub-paragraph 4, that said the Committee should consider the reasonableness of steps taken by States to fulfil their obligations.
Further, he said the negative formulation in article 3, paragraph 2(e), regarding the media was not appropriate for such an important legal document. He voiced particular reservations towards article 14, paragraph 3, which mentions the establishment of a trust fund linked to the individual complaint procedure. Mention of a fund was an “anomaly” and discriminated against States that had not accepted the Protocol, but still submitted reports on implementation of the whole Covenant. Further, it created the potential for duplication, given the presence of existing funds, agencies and programmes that could be asked to provide assistance. He expressed regret that inclusion of that provision had weakened the text, and was based on “opportunistic, political considerations”.
The representative of Finland said the protocol was a great step towards the full realization of all human rights. All human rights were universal and indivisible; political, civil, economic, social and cultural rights were interconnected. The optional protocol represented an important contribution to the human rights of individuals, while taking into account their indivisibility and interrelatedness. His country would sign the Optional Protocol at the earliest possible occasion.
The representative of Slovenia welcomed the adoption of the resolution on the sixtieth anniversary of the Universal Declaration on Human Rights, which had presented a farsighted vision of whole spectrum of human rights. She noted that it had taken 60 years for the world to catch up on that vision. The complaints procedure on economic, social and cultural rights had long been missing, but with such a mechanism in place, those rights could now be considered “serious” rights. The Protocol served as a guarantee to remedy violations of those rights and to deter States from violating them in the first place. It would help the world come to a better understanding of how rights abuses were linked to poverty and discrimination. She commended the Protocol’s comprehensive scope, saying it would help with the progressive realization of those rights by States parties.
Recognizing that all human rights were universal, indivisible and interrelated, the representative of Switzerland said that his delegation fully supported development in the area of the protection of economic, social and cultural rights. However, he also recalled his delegation’s position that those rights were, first, a matter for the legislative bodies that had been elected to give them effect. The provisions of the International Covenant on Economic, Social and Cultural Rights were not easily judiciable rights, though in Switzerland those rights could be evoked before the Swiss judicial authorities. Switzerland had supported a Charter-based approach that did not call into question the nature of the provisions contained in the Covenant. He also noted his delegation’s position that the implementation of the Optional Protocol did not cover the right to self-determination, since that was not an individual right.
The representative of Austria welcomed the creation of the individual complaints mechanism as an important step to enhance the international human rights protection architecture. However, the new mechanism could only be viable with broad membership and, therefore, the text needed to ensure that national specificities were taken into account. Austria’s understanding was that the draft optional protocol recognized the variety of means and choices available to States when implementing the Covenant.
The representative of the Philippines said that the adoption of the draft optional protocol would fortify the international normative framework for the rights included in the International Covenant on Economic, Social and Cultural Rights. The Covenant provided the fundamental context for the optional protocol and its reference to the “progressive realization of rights” should govern the understanding of the optional protocol. In closing, she asked that her delegation’s explanation of its position be included in the official record of the meeting.
The representative of Poland said the draft resolution read that the General Assembly “takes note” of the optional protocol and, as such, the draft resolution accurately reflected the reality of negotiations, in which consensus on the text could not be reached. Poland continued to be sceptical about the beneficial effects that an individual complaints mechanism might have on the realization of economic, social and cultural rights. That did not mean that the protocol would have no effect at all. Though all human rights were interrelated, interconnected and interdependent and needed to be treated with equal seriousness, that did not necessarily mean that they were all exactly alike.
International judicial and quasi-judicial procedures were not well suited to the enforcement of many social rights and they often invited rulings based on the political preferences of the judges, rather than on strict law, she said. Individual complaints might allow the Committee on Economic, Social and Cultural Rights to expand the Covenant through the so-called case law. However, Poland did not believe that was an appropriate choice either. Consequently, should the draft optional protocol became law, no case law developed by the Committee under the protocol should be seen as applicable to States who chose not to become party to the protocol.
Turkey’s delegate said his delegation had joined the consensus on the draft due to its full commitment to the progressive realization of the rights set forth in the Covenant. Like many other delegations, it had not objected to the compromise text in Geneva. However, it did have some concerns with regard to the amended article 2, as it would have preferred for the opt-out approach to be maintained in that article. That option would have facilitated States in expanding the range of rights covered by the complaints procedure over time, as they progressively evolved with greater clarity in domestic systems. The compromise reached in the working group on the limited approach in articles 2 and 11 would also have been preferred.
The representative of Germany said that, as a co-sponsor of the draft, Germany welcomed the approval of the draft optional protocol, after years of intensive discussions, debates and negotiations. “The time has come for the establishment of an individual complaints mechanism for economic, social and cultural rights”, he said. Germany was particularly pleased to see the comprehensive approach taken in the draft protocol. While some aspects of economic, social and cultural rights could only be realized progressively, other aspects implied direct obligations by States. As such, the draft optional protocol could effectively contribute to the promotion of those rights.
The representative of Sweden said his Government had not been convinced that the optional protocol was the best or most effective way of promoting economic, social and cultural rights. Still, it had participated in negotiation on that text, and had taken note of all views expressed. During that time, Sweden had argued for clear criteria to be used when examining complaints, which would account for the need for non-discrimination and which would not overburden the Committee. Further, he expressed concerned about certain provisions in the protocol that might be interpreted as giving the Committee a role in channelling or managing international assistance. Although he regretted that some key positions of several delegations had not been reflected in the text, he had nevertheless joined consensus.
The representative of Australia said the purpose of the protocol was to establish an avenue for individuals to raise concerns about human rights violations against them. Its jurisdiction could not be invoked by individuals in the case of collective rights, such as right to self-determination. She said the Committee on Economic, Social and Cultural Rights and the Human Rights Committee should be consistent in how they tackled that right. She further stressed that article 4 gave the Committee discretion to decline to consider complains in which the complainant had not demonstrated a particular disadvantage. Indeed, individual complaints that gave rise to issues of general importance could be addressed through the existing reporting mechanism and inquiry procedure. She also pointed to the reasonableness test, which recognized that States parties might choose from a range of policy measures to implement Covenant rights. The implementation of economic, social and cultural rights, by their nature, involved balancing competing resource priorities, which the Committee on Economic, Social and Cultural Rights should bear in mind.
Following those statements, the Committee decided that it would transmit the resolution to the General Assembly in time for Human Rights Day.
The Committee then moved to take action on the inadmissibility of certain practices that contribute to fuelling contemporary forms of racism, racial discrimination, xenophobia and related intolerance (document A/C.3/63/L.49), which had been orally revised by the representative of the Russian Federation at its introduction. The CHAIR informed the Committee that the draft contained no programme budget implications.
The representative of the Russian Federation, the main sponsor, said that the draft had received broad support from all regions of the world. Next year would mark the seventieth anniversary since the beginning of the Second World War, a war that had claimed countless lives and had been the stage for flagrant war crimes and crimes against humanity. Denying crimes committed during that war would be tantamount to trying to revise history. Unfortunately, those denials were becoming increasingly common. Indeed, in some countries, persistent attempts were being made to raise Nazi war criminals to the level of “hero”.
The co-sponsors of the draft were deeply concerned about the rise of extremist groups, such as neo-Nazis and skinheads, who carried out acts of violence against minority groups, immigrants and others, he continued. Such actions were completely unacceptable, as were efforts by those groups to treat those who were involved in Nazi crimes as heroes. The fuelling of racism, racial discrimination, xenophobia and related intolerance in that manner was of great concern. In closing, he added one minor oral revision to the revisions made when the text had been introduced and expressed his delegation’s hope for the broadest possible support for the adoption of the resolution.
The Secretary then informed the Committee that a vote had been requested on the draft resolution. The representative of the Russian Federation asked who had requested a recorded vote and, in response, the CHAIR replied that the representative of the United States had made the request.
Speaking before the vote, the representative of France, on behalf of the European Union and associated countries, reiterated the European Union’s firm attachment to the global fight against racism, racial discrimination, xenophobia and related intolerance. Neo-Nazism was a “particularly odious manifestation” of that racism and must be addressed within the framework of addressing all forms of racism, at all levels. The fight against neo-Nazism and other forms of racism and xenophobia must be a commonly held priority for all parties and should serve to unite those parties towards the elimination of racism from all societies. The European Union had participated fully in the main consultations with the main sponsors, but he expressed his delegation’s opinion that the resolution should be examined in more detail, as it did not address all the concerns expressed by the European Union and other delegations.
Continuing, he said that, instead of addressing the issue globally, the draft continued to have a selective point of view and diverted attention from central concerns. At the same time, his delegation was concerned over the remedy to the practices referenced in the draft since, to be effective, the draft resolution should bear in mind the provisions of articles 4 and 5 of the Universal Declaration of Human Rights. The European Union was firmly committed to the fight against racism, racial discrimination and xenophobia and was ready to work on a text that would contribute to the fight against those problems. For those reasons, the European Union would abstain from the vote on the draft.
The representative of the United States said his delegation would call for a vote and would vote no on the draft resolution. While “sharing the repugnance” at any attempt to glorify Nazi ideology, he said that, nevertheless, freedom of expression must be protected and, as others had noted, the draft resolution might have gone too far. More specifically, the draft failed to appropriately distinguish between actions and statements that should be protected by freedom of expression, and actions and statements to incite hatred and violence, which should be prohibited.
The Committee then approved the draft resolution, as orally revised, by a vote of 122 in favour to 1 against ( United States), with 54 abstentions (see Annex I).
Making a general statement after the vote, the representative of Ukraine explained his delegation’s abstention. His delegation believed that the subject was of great importance. However, neo-Stalinism also promoted dangerous levels of anti-Semitism and racial intolerance, and failure to include that group in the draft resolution was the reason behind his delegation’s abstention.
The Committee then took up the draft resolution on the universal realization of the right of peoples to self-determination (document A/C.3/63/L.48). The representative of Pakistan, its main sponsor, said the right to self-determination was the cornerstone of the United Nations Charter and the two international covenants, and had been affirmed and upheld by various international summits, declarations and resolutions. The support shown to that resolution since its maiden introduction sent a strong message against foreign occupation. He voiced hope that the text would continue to receive the wide support it had enjoyed in the past.
The Committee approved that resolution without a vote.
Speaking after action, the representative of Argentina expressed support for the principle of self-determination, but added that the text should be interpreted and implemented in line with relevant resolutions of the General Assembly on the subject of decolonization, particularly as they related to the Malvinas Islands, which was the subject of a sovereignty dispute between Argentina and the United Kingdom. He recalled that several United Nations resolutions had called for those two States to renew bilateral negotiations on the issue, bearing in mind the interests of the population.
The representative of France, speaking on behalf of the European Union and associated States, said he had joined consensus because it was believed that the right to self-determination was fundamental to international law. The United Nations Charter indicated that international peace and respect for the right to self-determination were linked, which was further affirmed in the first article of the two international covenants. Further, he believed that respect for the right to self-determination was closely linked to respect for equality among citizens and respect for the rule of law, based on the holding of free regular elections within the framework of democracy.
He would have liked to have seen more participation in discussions leading up to the text’s drafting, saying its current scope was too narrow. Indeed, all people had a right to self-determination, and he would have preferred that the practice of self-determination be treated in line with relevant principles under international law. The text contained points that were not correct under international law, where self-determination was referred to as a right of people, and not for n
Published on: 2008-11-19
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