WUNRN
The UN Working Group on an
Optional Protocol for the International Covenant on Economic, Social
& Cultural Rights - IESCR - has now completed its work on the text,
and is sending the Draft to the UN Human Rights Council and
later the UN General Assembly for endorsement. The Draft Optional Protocol for
the ICESCR is attached.
The NGO Coalition Closing Statement
to the Working Group on an Optional Protocol to the IESCR is attached.
_______________________________________________________________________
International Covenant on Economic,
Social and Cultural Rights
_______________________________________________________________________
UN High Commissioner for Human
Rights:
"An optional protocol –
offering an equivalent level of protection to that provided in other
international core human rights treaties – would send a strong message that
economic, social and cultural rights enjoy the same status and level of
importance as other rights within the United Nations human rights system. An
optional protocol would also serve to ensure that individuals have an
opportunity to be heard and that they have access to remedies in cases of
violations. The experience of other communications procedures shows how such
mechanisms have served to give voice to individuals, including those in the
most vulnerable and marginalized situations, and draw attention to their
problems."
______________________________________________________________________
The States Parties to the present
Protocol,
Considering that, in accordance with the
principles proclaimed in the Charter of the United Nations, recognition of the
inherent dignity and of the equal and inalienable rights of members of the
human family is the foundation of freedom, justice and peace in the world,
Also noting that the Universal
Declaration of Human Rights proclaims that all human beings are born free and
equal in dignity and rights and that everyone is entitled to all the rights and
freedoms set forth therein, without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status,
Recalling that the Universal Declaration of Human Rights, and the International Covenants on Human
Rights recognize that the ideal of free human beings enjoying freedom from fear
and want can only be achieved if conditions are created whereby everyone may
enjoy civil, cultural, economic, political and social rights,
Reaffirming the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms,
Considering that in order further
to achieve the purposes of the International Covenant on Economic, Social and
Cultural Rights (hereinafter referred to as the Covenant) and the
implementation of its provisions it would be appropriate to enable the
Committee on Economic, Social and Cultural Rights (hereinafter referred to as
the Committee) to carry out the functions provided for in the present protocol,
Recalling that each State Party to the Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the Covenant by all appropriate means, including particularly the adoption of legislative measures,
Have agreed as follows:
1. A
State Party to the Covenant that becomes a Party to the present Protocol
recognizes the competence of the Committee to receive and consider
communications as provided for by the provisions of the present Protocol.
2. No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a Party to the present Protocol.
1. Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victim of a violation of any of the rights set forth in Parts II and III of the Covenant by that State Party. Where a communications is submitted on behalf of individuals or groups of individuals, this shall be with their consent unless the author can justify acting on their behalf without such consent.
1. The
Committee shall not consider a communication unless it has ascertained that all
available domestic remedies have been exhausted. This shall not be the rule
where the application of such remedies is unreasonably prolonged.
2. The
Committee shall declare a communication inadmissible when:
(a) It
is not submitted within one year after the exhaustion of domestic remedies,
except in cases where the author can demonstrate that it had not been possible
to submit the communication within that time limit;
(b) The
facts that are the subject of the communication occurred prior to the entry
into force of the present Protocol for the State Party concerned unless those
facts continued after that date;
(c) The
same matter has already been examined by the Committee or has been or is being
examined under another procedure of international investigation or settlement;
(d) It
is incompatible with the provisions of the Covenant;
(e) It is manifestly ill-founded, not
sufficiently substantiated or exclusively based on reports disseminated by mass
media;
(f) It is an abuse of
the right to submit a communication; or when
(g) It
is anonymous or not in writing.
Communications not revealing a clear disadvantage
The Committee may, if necessary, decline to consider a communication where it does not reveal that the author has suffered a clear disadvantage, unless the Committee considers that the communication raises a serious issue of general importance.
1. At any time after the receipt of a communication and before a determination on the merits has been reached, the Committee may transmit to the State Party concerned for its urgent consideration a request that the State Party take such interim measures as may be necessary in exceptional circumstances to avoid possible irreparable damage to the victim or victims of the alleged violations.
2. Where the Committee exercises its discretion under paragraph 1 of the present article, this does not imply a determination on admissibility or on the merits of the communication.
1. Unless
the Committee considers a communication inadmissible without reference to the
State Party concerned, the Committee shall bring any communication submitted to
it under the present Protocol confidentially to the attention of the State
Party concerned.
2. Within
six months, the receiving State Party shall submit to the Committee written
explanations or statements clarifying the matter and the remedy, if any, that
may have been provided by that State Party.
1. The
Committee shall make available its good offices to the parties concerned with a
view to reaching a friendly settlement of the matter on the basis of the
respect for the obligations set forth in the Covenant.
2. An
agreement on a friendly settlement closes consideration of the communication
under the present Protocol.
1. The
Committee shall examine communications received under article 2 of the present
Protocol in the light of all documentation submitted to it, provided that this information is transmitted to
the Parties concerned.
2. The
Committee shall hold closed meetings when examining communications under the
present Protocol.
3. When examining a communication under
the present protocol, the Committee may consult, as appropriate, relevant
documentation emanating from other United Nations bodies, specialized agencies,
funds, programmes and mechanisms, and other international organizations,
including from regional human rights systems, and any observations or comments
by the State party concerned.
4. When examining communications under the present Protocol, the Committee shall consider the reasonableness of the steps taken by the State Party in accordance with Part II of the Covenant. In doing so, the Committee shall bear in mind that the State Party may adopt a range of possible policy measures for the implementation of the rights set forth in the Covenant.
1. After examining a communication, the
Committee shall transmit its views on the communication, together with its
recommendations, if any, to the parties concerned.
2. The State Party shall give due
consideration to the views of the Committee, together with its recommendations,
if any, and shall submit to the Committee, within six months, a written
response, including information on any action taken in the light of the views
and recommendations of the Committee.
3. The Committee may invite the State
Party to submit further information about any measures the State Party has
taken in response to its views or recommendations, if any, including as deemed
appropriate by the Committee, in the State Party's subsequent reports under
articles 16 and 17 of the Covenant.
1. A
State Party to the present Protocol may at any time declare under this article
that it recognizes the competence of the Committee to receive and consider
communications to the effect that a State Party claims that another State Party
is not fulfilling its obligations under the Covenant. Communications under this
article may be received and considered only if submitted by a State Party that
has made a declaration recognizing in regard to itself the competence of the
Committee. No communication shall be received by the Committee if it concerns a
State Party which has not made such a declaration. Communications received
under this article shall be dealt with in accordance with the following procedure:
(a) If
a State Party to the present Protocol considers that another State Party is not
fulfilling its obligations under the Covenant, it may, by written
communication, bring the matter to the attention of that State Party. The State
Party may also inform the Committee of the matter. Within three months after
the receipt of the communication the receiving State shall afford the State
that sent the communication an explanation, or any other statement in writing
clarifying the matter which should include, to the extent possible and
pertinent, reference to domestic procedures and remedies taken, pending or
available in the matter;
(b) If
the matter is not settled to the satisfaction of both States Parties concerned
within six months after the receipt by the receiving State of the initial
communication, either State shall have the right to refer the matter to the
Committee, by notice given to the Committee and to the other State;
(c) The
Committee shall deal with a matter referred to it only after it has ascertained
that all available domestic remedies have been invoked and exhausted in the
matter. This shall not be the rule where the application of the remedies is
unreasonably prolonged;
(d) Subject
to the provisions of subparagraph (c)
of the present paragraph, the Committee shall make available its good offices
to the States Parties concerned with a view to a friendly solution of the
matter on the basis of the respect for the obligations set forth in the
Covenant;
(e) The
Committee shall hold closed meetings when examining communications under the
present article;
(f) In
any matter referred to it in accordance with subparagraph (b) of the present paragraph, the Committee may call upon the States
Parties concerned, referred to in subparagraph (b), to supply any relevant information;
(g) The
States Parties concerned, referred to in subparagraph (b) of the present paragraph, shall have the right to be represented
when the matter is being considered by the Committee and to make submissions
orally and/or in writing;
(h) The
Committee shall, with all due expediency after the date of receipt of notice
under subparagraph (b) of the present
paragraph, submit a report, as follows:
(i) If
a solution within the terms of subparagraph (d) of the present paragraph is
reached, the Committee shall confine its report to a brief statement of the
facts and of the solution reached;
(ii) If
a solution within the terms of subparagraph (d) is not reached, the Committee shall,
in its report, set forth the relevant facts concerning the issue between the States Parties
concerned. The written submissions and record of the oral submissions made by
the States Parties concerned shall be attached to the report. The Committee may
also communicate only to the States Parties concerned any views that it may
consider relevant to the issue between them.
In every matter, the report shall
be communicated to the States Parties concerned.
2. A
declaration under paragraph 1 of the present article shall be deposited by the
States Parties with the Secretary-General of the United Nations, who shall
transmit copies thereof to the other States Parties. A declaration may be
withdrawn at any time by notification to the Secretary‑General. Such a
withdrawal shall not prejudice the consideration of any matter that is the
subject of a communication already transmitted under the present article; no
further communication by any State Party shall be received under the present
article after the notification of withdrawal of the declaration has been
received by the Secretary-General, unless the State Party concerned has made a
new declaration.
1. A State Party to the present Protocol
may at any time declare that it recognizes the competence of the Committee provided for under this article.
2. If
the Committee receives reliable information indicating grave or systematic
violations by a State Party of the rights set forth in the Covenant, the
Committee shall invite that State Party to cooperate in the examination of the
information and to this end to submit observations with regard to the
information concerned.
3. Taking
into account any observations that may have been submitted by the State Party
concerned as well as any other reliable information available to it, the
Committee may designate one or more of its members to conduct an inquiry and to
report urgently to the Committee. Where warranted and with the consent of the
State Party, the inquiry may include a visit to its territory.
4. Such
an inquiry shall be conducted confidentially and the cooperation of the State
Party shall be sought at all stages of the proceedings.
5. After
examining the findings of such an inquiry, the Committee shall transmit these
findings to the State Party concerned together with any comments and
recommendations.
6. The
State Party concerned shall, within six months of receiving the findings,
comments and recommendations transmitted by the Committee, submit its
observations to the Committee.
7. After
such proceedings have been completed with regard to an inquiry made in
accordance with paragraph 2, the Committee may, after consultations with the
State Party concerned, decide to include a summary account of the results of
the proceedings in its annual report provided for in
article 15.
8. Any
State Party having made a declaration in accordance with paragraph 1 of the
present article may, at any time, withdraw this declaration by notification to
the Secretary-General.
1. The
Committee may invite the State Party concerned to include in its report under
articles 16 and 17 of the Covenant details of any measures taken in
response to an inquiry conducted under article 10 of the present Protocol.
2. The
Committee may, if necessary, after the end of the period of six months referred
to in article 10, paragraph 6, invite the State Party concerned to inform it of
the measures taken in response to such an inquiry.
A
State Party shall take all appropriate measures to ensure that individuals
under its jurisdiction are not subjected to any form of ill-treatment or
intimidation as a consequence of communicating with the Committee pursuant to
the present Protocol.
1.
The
Committee shall transmit, as it may consider appropriate, and with the consent of the State
Party concerned, to United Nations specialized agencies, funds and
programmes and other competent bodies, its views or recommendations concerning
communications and inquiries that indicate a need for technical advice or
assistance, along with the State Party’s observations and suggestions, if any,
on these views or recommendations.
2.
The
Committee may also bring to the attention of such bodies, with
the consent of the State Party concerned, any matter
arising out of communications considered under the present Protocol which may
assist them in deciding, each within its field of competence, on the
advisability of international measures likely to contribute to assisting States
Parties in achieving progress in implementation of the rights recognized in the
Covenant.
3. A trust fund shall be established in accordance with the relevant procedures of the General Assembly, to be administered in accordance with the financial regulation regulations and rules of the United Nations, with a view to provide expert and technical assistance to States Parties, with the consent of the State Party concerned, for the enhanced implementation of the rights contained in the Covenant, thus contributing to building national capacities in the area of economic, social and cultural rights in the context of the present Protocol.
The
Committee shall include in its annual report a summary of its activities under
the present Protocol.
Each
State Party undertakes to make widely known and to disseminate the Covenant and
the present Protocol and to facilitate access to information about the views
and recommendations of the Committee, in particular, on matters involving that
State Party, and to do so in accessible formats, for persons with
disabilities.
1. The
present Protocol is open for signature by any State that has signed, ratified
or acceded to the Covenant.
2. The
present Protocol is subject to ratification by any State that has ratified or
acceded to the Covenant. Instruments of ratification shall be deposited with
the Secretary‑General of the United Nations.
3. The
present Protocol shall be open to accession by any State that has ratified or
acceded to the Covenant.
4. Accession
shall be effected by the deposit of an instrument of accession with the
Secretary‑General of the United Nations.
1. The
present Protocol shall enter into force three months after the date of the
deposit with the Secretary-General of the United Nations of the tenth
instrument of ratification or accession.
2. For each State ratifying
or acceding to the present Protocol, after the deposit of the tenth
instrument of ratification or accession, the Protocol shall enter into force
three months after the date of the deposit of its own instrument of ratification or accession.
1. Any
State Party may propose an amendment to the present Protocol and submit it to
the Secretary-General of the United Nations. The Secretary-General shall
communicate any proposed amendments to States Parties, with a request to be
notified whether they favour a meeting of States Parties for the purpose of
considering and deciding upon the proposals. In the event that, within four
months from the date of such communication, at least one third of the States
Parties favour such a meeting, the Secretary-General shall convene the meeting
under the auspices of the United Nations. Any amendment adopted by a majority
of two thirds of the States Parties present and voting shall be submitted by
the Secretary-General to the General Assembly for approval and thereafter to
all States Parties for acceptance.
2. An
amendment adopted and approved in accordance with paragraph 1 of this article
shall enter into force on the thirtieth day after the number of instruments of
acceptance deposited reaches two thirds of the number of States Parties at the
date of adoption of the amendment. Thereafter, the amendment shall enter into
force for any State Party on the thirtieth day following the deposit of its own
instrument of acceptance. An amendment shall be binding only on those States
Parties which have accepted it.
1. Any
State Party may denounce the present Protocol at any time by written
notification addressed to the Secretary-General of the United Nations.
Denunciation shall take effect six months after the date of receipt of the
notification by the Secretary-General.
2. Denunciation
shall be without prejudice to the continued application of the provisions of
the present Protocol to any communication submitted under articles 2 and 9 or to any procedure initiated under
article 10 before the effective date of denunciation.
The
Secretary-General of the United Nations shall notify all States referred to in
article 26, paragraph 1, of the Covenant of the following particulars:
(a) Signatures,
ratifications and accessions under the present Protocol;
(b) The
date of entry into force of the present Protocol and of any amendment under
article 22;
(c) Any
denunciation under article 24.
1. The
present Protocol, of which the Arabic, Chinese, English, French, Russian and
Spanish texts are equally authentic, shall be deposited in the archives of the
United Nations.
2. The
Secretary-General of the United Nations shall transmit certified copies of the
present Protocol to all States referred to in article 26 of the Covenant.
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