08.08.01
Statements
Sub-Commission on the Promotion and Protection of Human Rights: OMCT, the ICJ and the LWF intervene on economic, social and cultural rights
Sub-Commission on the Promotion and Protection of Human Rights
53rd Session
Item 4: Economic, Social and Cultural Rights
August 7th 2001
Joint Oral Statement by the International Commission of Jurists (ICJ), the Lutheran World Federation (LWF) and the World Organisation Against Torture (OMCT)
Mr. Chairman,
In recent years considerable attention has been given to the impact of economic globalisation on human rights. In particular, the human rights implications of international and regional trade-related agreements, as well as policies and programmes of international and regional financial institutions have become central to the work of the Sub-Commission, as well as other human rights mechanisms such as the Committee on Economic, Social and Cultural Rights and United Nations Special Rapporteurs working on issues related to economic, social and cultural rights.
In this regard, the International Commission of Jurists (ICJ), the Lutheran World Federation (LWF) and the World Organisation Against Torture (OMCT) strongly welcome the progress report submitted by Mr. Oloka-Onyango and Ms. Udagama on globalisation and its impact on the full enjoyment of human rights (E/CN.4/Sub.2/2001/11). Last year, we welcomed Sub-Commission resolution 2000/7 (E/CN.4/SUB.2/RES/2000/7) on intellectual property rights and human rights, which reaffirmed the primacy of human rights obligations over economic policies and agreements and which called upon governments and national, regional and international economic policy fora to take international human rights obligations and principles fully into account in international economic policy formulation. However, we note that for the time being, two parallel regimes continue to develop separately, with a risk of marginalisation of human rights principles, instruments and mechanisms.
Mr Chairman,
Specific attention has been given to the human rights implications of the WTO TRIPs Agreement, in particular with the report of the High Commissioner on the impact of the WTO Agreement on Trade-Related Aspect of Intellectual Property Rights (TRIPs) on human rights (E/CN.4/Sub.2/2001/14), as well as the remarks on the question of intellectual property rights in the progress report submitted by Mr. Oloka-Onyango and Ms. Udagama. We also take note of the current efforts undertaken by the Committee on Economic, Social and Cultural Rights to draft and adopt a general comment on the relationship between intellectual property and human rights.
However, we believe that further clarification is needed, in particular on the impact of the WTO TRIPs Agreement on the enjoyment of specific rights such as the right to self-determination, the right to food, the right to education as enshrined in the International Covenant on Economic, Social and Cultural Rights, and the rights of indigenous peoples. Protection of indigenous peoples’ traditional knowledge, bio-piracy, food security, access to medicine, technology transfer and development are but some of the most crucial human rights issues raised by the implementation of the WTO TRIPs Agreement. The impact of this agreement on other human rights, given the interdependence and interrelatedness of all human rights, also need to be addressed. In this regard, all the relevant United Nations treaty bodies, as well as all the United Nations Special Procedures that work on economic, social and cultural rights, should pay attention to the implications of the WTO TRIPs agreement for the realisation of these rights.
The scope, meaning, interpretation and implementation of several provisions of the WTO TRIPs Agreement, and in particular articles 7 and 8 on the objectives and principles and article 31 covering compulsory licensing and parallel imports also need to be clarified in the light of States’ responsibility to ensure the full and non-discriminatory enjoyment of economic, social and cultural rights as well as the right to self-determination.
Mr. Chairman,
Under the International Covenant on Economic, Social and Cultural Rights as well as according to articles 25 and 26 of the Universal Declaration on Human Rights, States are responsible for ensuring the provision of affordable and accessible medical, educational and other necessary social services referred to in both instruments. As the WTO General Agreement on Trade in Services (GATS) provides for liberalization of these sectors, we believe that the human rights implications of this specific agreement have not been sufficiently addressed by the international human rights community, in particular with regard to the enjoyment of the right to health, the right to education and the right to an adequate standard of living on a non-discriminatory and universal basis.
Mr. Chairman,
We believe that this Sub-Commission is well-placed to reassert the primacy of human rights obligations over economic policies and agreements, as well as to recommend further studies on the implications of trade-related agreements on human rights, and in particular the WTO TRIPs Agreement and the WTO GATS Agreement. Moreover, we also believe that this Sub-Commission can play an important role in having other relevant United Nations human rights mechanisms –treaty bodies and special procedures- to look at and consider the implications of economic polices and agreements on the enjoyment of all human rights.
Mr. Chairman,
The ICJ, the LWF and OMCT hold as a high priority the examination of ways in which to strengthen the implementation of economic, social and cultural rights. In the current context of globalisation, economic, social and cultural rights have to be understood, more than ever, as an indivisible part of human rights and must be implemented as such. The draft Optional Protocol to the ICESCR currently before the Commission on Human Rights is of great relevance to the studies and discussions on economic, social and cultural rights currently underway at the Sub-Commission. This protocol would ensure that persons and groups who are victims of violations of economic, social and cultural rights highlighted in these studies and discussions would have access to an effective remedy at the international level.
The indivisibility of human rights should lead to the recognition of the justiciability of economic, social and cultural rights at the national, regional and universal level. In this respect, we would like to draw your attention to the report of the Workshop on the Justiciability of Economic, Social and Cultural Rights, with particular reference to the Draft Optional Protocol to the Covenant on Economic, Social and Cultural Rights( ICESCR) held in Geneva on 5 and 6 February, 2001, pursuant, inter alia, to the request made by this Sub-commission last year in its Resolution 2000/9 (E/CN.4/sub.2/2000/L.11/add.1).
This workshop was organized by the Office of the High Commissioner for Human Rights (OHCHR) in cooperation with the ICJ. During the session on justiciability at the domestic level, experts demonstrated through case studies on Mauritius, Colombia, South Africa, Canada, France, and India that economic, social and cultural rights have indeed been recognized as justiciable—and are already adjudicated—in legal systems across the world. Expert presentations on the draft Optional Protocol to the ICESCR underscored the need to give a renewed emphasis to economic social and cultural rights, a category of rights historically neglected, and currently suffering most from certain aspects of liberalization, market economy and globalisation. During the workshop, it was stressed that old arguments against the draft Optional Protocol are obsolete, now that so many other international mechanisms admitting complaints on these rights have been created - such as the 1995 Additional Protocol to the European Social Charter providing for a mechanism of collective complaints in force . the 2000 San Salvador Protocol and the African Charter on Human and Peoples’ Rights and the new Optional Protocol to CEDAW allowing for individual complaints, including in cases of discrimination against women relating to economic, social and cultural rights.
The majority of workshop participants and experts concluded that the question of progress towards the adoption of the draft optional protocol is now primarily a political one. Thus, only an inter-sessional open-ended working group of the Commission on Human Rights within which States can debate, be given the opportunity to raise issues of concern and reach the necessary political consensus, will secure a successful exercise.
The high level of government participation in the workshop -91 representatives of 74 governments- is proof of the importance attached to the matter. An important momentum was created by this event, and it was followed by the decision of the Commission on Human Rights during in Resolution 2001/30 (E/CN.4/2001/L.11/Add.1) to appoint an independent expert to examine the question of the draft Optional protocol in the light, inter alia, of the text contained in the annex to document E/CN.4/1997/ 105, the comments made by States, intergovernmental organisations and non-governmental organisations, as well as the report of the above-mentioned workshop. The expert was requested to submit a report to the Commission at its 58th session with a view to its consideration of possible follow-up and future actions, including the establishment of an open-ended working group of the Commission to examine the question of a draft optional protocol to the ICESCR. The ICJ , the LWF and the OMCT urge the Sub-Commission to reiterate its call to the Commission to establish during its 58th session an inter-sessional open-endedworking group in which further consideration of the draft optional protocol will take place.
Thank you very much, Mr. Chairman.
53rd Session
Item 4: Economic, Social and Cultural Rights
August 7th 2001
Joint Oral Statement by the International Commission of Jurists (ICJ), the Lutheran World Federation (LWF) and the World Organisation Against Torture (OMCT)
Mr. Chairman,
In recent years considerable attention has been given to the impact of economic globalisation on human rights. In particular, the human rights implications of international and regional trade-related agreements, as well as policies and programmes of international and regional financial institutions have become central to the work of the Sub-Commission, as well as other human rights mechanisms such as the Committee on Economic, Social and Cultural Rights and United Nations Special Rapporteurs working on issues related to economic, social and cultural rights.
In this regard, the International Commission of Jurists (ICJ), the Lutheran World Federation (LWF) and the World Organisation Against Torture (OMCT) strongly welcome the progress report submitted by Mr. Oloka-Onyango and Ms. Udagama on globalisation and its impact on the full enjoyment of human rights (E/CN.4/Sub.2/2001/11). Last year, we welcomed Sub-Commission resolution 2000/7 (E/CN.4/SUB.2/RES/2000/7) on intellectual property rights and human rights, which reaffirmed the primacy of human rights obligations over economic policies and agreements and which called upon governments and national, regional and international economic policy fora to take international human rights obligations and principles fully into account in international economic policy formulation. However, we note that for the time being, two parallel regimes continue to develop separately, with a risk of marginalisation of human rights principles, instruments and mechanisms.
Mr Chairman,
Specific attention has been given to the human rights implications of the WTO TRIPs Agreement, in particular with the report of the High Commissioner on the impact of the WTO Agreement on Trade-Related Aspect of Intellectual Property Rights (TRIPs) on human rights (E/CN.4/Sub.2/2001/14), as well as the remarks on the question of intellectual property rights in the progress report submitted by Mr. Oloka-Onyango and Ms. Udagama. We also take note of the current efforts undertaken by the Committee on Economic, Social and Cultural Rights to draft and adopt a general comment on the relationship between intellectual property and human rights.
However, we believe that further clarification is needed, in particular on the impact of the WTO TRIPs Agreement on the enjoyment of specific rights such as the right to self-determination, the right to food, the right to education as enshrined in the International Covenant on Economic, Social and Cultural Rights, and the rights of indigenous peoples. Protection of indigenous peoples’ traditional knowledge, bio-piracy, food security, access to medicine, technology transfer and development are but some of the most crucial human rights issues raised by the implementation of the WTO TRIPs Agreement. The impact of this agreement on other human rights, given the interdependence and interrelatedness of all human rights, also need to be addressed. In this regard, all the relevant United Nations treaty bodies, as well as all the United Nations Special Procedures that work on economic, social and cultural rights, should pay attention to the implications of the WTO TRIPs agreement for the realisation of these rights.
The scope, meaning, interpretation and implementation of several provisions of the WTO TRIPs Agreement, and in particular articles 7 and 8 on the objectives and principles and article 31 covering compulsory licensing and parallel imports also need to be clarified in the light of States’ responsibility to ensure the full and non-discriminatory enjoyment of economic, social and cultural rights as well as the right to self-determination.
Mr. Chairman,
Under the International Covenant on Economic, Social and Cultural Rights as well as according to articles 25 and 26 of the Universal Declaration on Human Rights, States are responsible for ensuring the provision of affordable and accessible medical, educational and other necessary social services referred to in both instruments. As the WTO General Agreement on Trade in Services (GATS) provides for liberalization of these sectors, we believe that the human rights implications of this specific agreement have not been sufficiently addressed by the international human rights community, in particular with regard to the enjoyment of the right to health, the right to education and the right to an adequate standard of living on a non-discriminatory and universal basis.
Mr. Chairman,
We believe that this Sub-Commission is well-placed to reassert the primacy of human rights obligations over economic policies and agreements, as well as to recommend further studies on the implications of trade-related agreements on human rights, and in particular the WTO TRIPs Agreement and the WTO GATS Agreement. Moreover, we also believe that this Sub-Commission can play an important role in having other relevant United Nations human rights mechanisms –treaty bodies and special procedures- to look at and consider the implications of economic polices and agreements on the enjoyment of all human rights.
Mr. Chairman,
The ICJ, the LWF and OMCT hold as a high priority the examination of ways in which to strengthen the implementation of economic, social and cultural rights. In the current context of globalisation, economic, social and cultural rights have to be understood, more than ever, as an indivisible part of human rights and must be implemented as such. The draft Optional Protocol to the ICESCR currently before the Commission on Human Rights is of great relevance to the studies and discussions on economic, social and cultural rights currently underway at the Sub-Commission. This protocol would ensure that persons and groups who are victims of violations of economic, social and cultural rights highlighted in these studies and discussions would have access to an effective remedy at the international level.
The indivisibility of human rights should lead to the recognition of the justiciability of economic, social and cultural rights at the national, regional and universal level. In this respect, we would like to draw your attention to the report of the Workshop on the Justiciability of Economic, Social and Cultural Rights, with particular reference to the Draft Optional Protocol to the Covenant on Economic, Social and Cultural Rights( ICESCR) held in Geneva on 5 and 6 February, 2001, pursuant, inter alia, to the request made by this Sub-commission last year in its Resolution 2000/9 (E/CN.4/sub.2/2000/L.11/add.1).
This workshop was organized by the Office of the High Commissioner for Human Rights (OHCHR) in cooperation with the ICJ. During the session on justiciability at the domestic level, experts demonstrated through case studies on Mauritius, Colombia, South Africa, Canada, France, and India that economic, social and cultural rights have indeed been recognized as justiciable—and are already adjudicated—in legal systems across the world. Expert presentations on the draft Optional Protocol to the ICESCR underscored the need to give a renewed emphasis to economic social and cultural rights, a category of rights historically neglected, and currently suffering most from certain aspects of liberalization, market economy and globalisation. During the workshop, it was stressed that old arguments against the draft Optional Protocol are obsolete, now that so many other international mechanisms admitting complaints on these rights have been created - such as the 1995 Additional Protocol to the European Social Charter providing for a mechanism of collective complaints in force . the 2000 San Salvador Protocol and the African Charter on Human and Peoples’ Rights and the new Optional Protocol to CEDAW allowing for individual complaints, including in cases of discrimination against women relating to economic, social and cultural rights.
The majority of workshop participants and experts concluded that the question of progress towards the adoption of the draft optional protocol is now primarily a political one. Thus, only an inter-sessional open-ended working group of the Commission on Human Rights within which States can debate, be given the opportunity to raise issues of concern and reach the necessary political consensus, will secure a successful exercise.
The high level of government participation in the workshop -91 representatives of 74 governments- is proof of the importance attached to the matter. An important momentum was created by this event, and it was followed by the decision of the Commission on Human Rights during in Resolution 2001/30 (E/CN.4/2001/L.11/Add.1) to appoint an independent expert to examine the question of the draft Optional protocol in the light, inter alia, of the text contained in the annex to document E/CN.4/1997/ 105, the comments made by States, intergovernmental organisations and non-governmental organisations, as well as the report of the above-mentioned workshop. The expert was requested to submit a report to the Commission at its 58th session with a view to its consideration of possible follow-up and future actions, including the establishment of an open-ended working group of the Commission to examine the question of a draft optional protocol to the ICESCR. The ICJ , the LWF and the OMCT urge the Sub-Commission to reiterate its call to the Commission to establish during its 58th session an inter-sessional open-endedworking group in which further consideration of the draft optional protocol will take place.
Thank you very much, Mr. Chairman.