PHA-Exch> OP-ICESCR adopted by the GA

[Claudio Schuftan]

From: Asako Hattori AHattori at ohchr.org

The Optional Protocol to the International Covenant on Economic, Social and
Cultural Rights has been approved by the General Assembly.
Formal adoption by the GA will take place on 10 December (International
Human Rights Day) during the commemoration of the 60th anniversary of the
UDHR.

Next step will be ratification by States (10 ratification required for the
OP to enter into force).

Text adopted:
http://daccessdds.un.org/doc/UNDOC/LTD/N08/582/44/PDF/N0858244.pdf?OpenElement

Press release (incl. concerns expressed by Member States). Full text:
http://www.un.org/News/Press/docs/2008/gashc3938.doc.htm
Excerpt: below

*THIRD COMMITTEE RECOMMENDS GENERAL ASSEMBLY ADOPTION OF OPTIONAL PROTOCOL*

*TO INTERNATIONAL CONVENTION ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS*

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.
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