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Abstract
The author looks at the obligations of international assistance and cooperation assumed by 159 states parties to the International Covenant on Economic, Social and Cultural Rights (ICESCR) with the aim of determining whether they can be used as a tool to reinforce the commitments assumed under the Millennium Development Goal (MDG) 8. The article examines the work that the Committee on Economic, Social and Cultural Rights has done developing the scope and content of Article 2(1) ICESCR. Then it examines the potential that the Optional Protocol to the ICESCR would bring in relation to accountability for obligations of international assistance and cooperation. The article concludes by calling upon the human rights and development communities to actively engage in the ratification process of the OP and to devise strategies for using the mechanisms it establishes to hold donors and recipient states accountable for their obligations of international assistance and cooperation. These human rights mechanisms would further contribute to the achievement of MDG 8.
Notes
Adopted at the United Nations Millennium Summit, A/RES/55/2, 18 September 2000.
See Millennium Development Goals Report 2007, available at UN website: <http://www.un.org/millenniumgoals/pdf/mdg2007.pdf> (accessed December 2008).
Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966. Entered into force 3 January 1976.
Information up to December 2008.
In other words, this paper is addressed principally to a ‘development audience’; therefore, it examines the scope and content of the human rights obligations of international assistance and cooperation without examining in any detail the scope and content of MDG 8 as the latter would be more familiar to the target audience. For a comprehensive analysis of the links between MDG 8 and human rights from a development perspective in general, see Sakiko Fukuda-Parr, ‘Millennium Development Goal 8: Indicators for International Human Rights Obligations?’, Human Rights Quarterly 28, no. 4 (2006): 966–97.
See, for example, the Declaration on Principles of International Law concerning Friendly Relations and Co-operation Among States in accordance with the Charter of United Nations (GA. Res. 2625 (XXV)) and the Declaration on the Right to Development, adopted by General Assembly Res. 41/128 of 4 December 1986.
General Comment No. 3., para. 13.
See the Limburg Principles Nos. 29–34 and the commentaries by E.V.O Dankwa and Cees Flinterman, ‘Commentary by the rapporteurs on the nature and scope of States parties’ obligations', Human Rights Quarterly 9, (1987): 140–1.
‘Revised general guidelines regarding the form and contents of reports to be submitted by states parties under articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights’, E/C.12/1991/, 17 June 1991.
With regard to Article 8 (the right to join and form trade unions and the right to strike), the Committee does not require states to indicate the role of international assistance as it seems that international assistance does not play any role in the full realisation of these rights. ‘Revised general guidelines regarding the form and contents of reports to be submitted by States Parties under articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights.’ UN doc. E/C.12/1991/1.
The wording of this provision is slightly different from Article 2(1) ICESCR as it refers only to international cooperation. However, as has been noted, at the international level the term international cooperation encompasses the notion of assistance. For further development on article 4 CRC see: Sharon Detrick, A Commentary on the United Nations Convention on the Rights of the Child (The Hague: Martinus Nijhoff, 1999), 109–14.
Prior to each Committee session, some members of the Committee meet in order to identify in advance the questions which will constitute the principal focus of discussion with state representatives during the constructive dialogue. This ‘pre-sessional working group’ prepares a list of issues to be taken into consideration when examining the state party report. The List of Issues is sent to the respective government through diplomatic channels. In order to facilitate the dialogue, the Committee requests the state party to provide answers to its List of Issues in writing and in advance of the session, in time for them to be translated into the working languages of the Committee. See CRC/C/33, para. 12.
See, for example, List of Issues: Trinidad and Tobago. CRC/C/Q/TRI/1, 13 June 1997.
See, for example, Concluding Observations Australia CRC/C/15/Add.79, para. 25.
In both cases, the wording refers to ‘international co-operation’ without including ‘assistance’.
In General Comment No. 3, para. 14 (1990), the Committee on Economic Social and Cultural Rights noted: ‘14. The Committee wishes to emphasise that in accordance with Articles 55 and 56 of the Charter of the United Nations, with well-established principles of international law, and with the provisions of the Covenant itself, international co-operation for development and thus for the realisation of economic, social and cultural rights is an obligation of all States. It is particularly incumbent upon those States which are in a position to assist others in this regard. […]’ It emphasises that, in the absence of an active programme of international assistance and co-operation on the part of all those states that are in a position to undertake one, the full realisation of economic, social and cultural rights will remain an unfulfilled aspiration in many countries.
See, for example, General Comment No. 14, para. 45 and General Comment No. 15, paras 37 and 38. See also General Comment No. 17, paras 36–8 and General Comment No. 18, paras 29–30.
‘Substantive issues arising in the implementation of the International Covenant on Economic, Social and Cultural Rights: Poverty and the International Covenant on Economic, Social and Cultural Rights’, statement adopted by the Committee on Economic, Social and Cultural Rights on 4 May 2001 E/C.12/2001/10 (footnote omitted). As a Committee member notes, the core obligations and the obligations relating to international assistance and cooperation ‘should be seen as two halves of a package’. Mr. Hunt in E/C.12/2000/SR.10, para. 27.
General Comment No.14, para. 45; General Comment No. 15, para. 38 and General Comment No. 17, para. 31.
See General Comment No. 14, para. 45: the same view was repeated in a statement adopted by the Committee on 4 May 2001 relating to Poverty and the International Covenant on Economic, Social and Cultural Rights (E/C.12/2001/10) in which the Committee noted: ‘… In General Comment No. 14, the Committee emphasizes that it is particularly incumbent on all those in a position to assist, to provide “international assistance and cooperation, especially economic and technical” to enable developing countries to fulfil their core obligations. In short, core obligations give rise to national responsibilities for all States and international responsibilities for developed States, as well as others that are “in a position to assist”’(para. 16, footnote omitted). The same view has been held in some concluding observations: see, for example, Concluding Observations Ireland E/2003/22, para. 151 and Concluding Observations United Kingdom E/2003/22, para. 229. Although in their context it seems clear that by ‘other entities’ the Committee is referring to international financial institutions, it would be necessary for the Committee to clarify its understanding on this point.
This should not be taken to imply that obligations of international financial institutions are not relevant but rather a choice of focus for this article. For an analysis on how to make international financial institutions accountable under a complaint procedure, see, for example, R. Kunnemann, ‘Extraterritorial application of the International Covenant on Economic, Social and Cultural Rights’, in Extraterritorial Application of Human Rights Treaties, ed. F. Coomans and M. Kamminga (Antwerp: Intersentia, 2004), 212–6.
The same view has been taken by several scholars and experts. Noteworthy in this regard are the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (principles 29–34). These principles were adopted by a group of distinguished experts in international law, convened by the International Commission of Jurists, the Faculty of Law of the University of Limburg (Maastricht, the Netherlands) and the Urban Morgan Institute for Human Rights, University of Cincinnati (Ohio, USA), who met in Maastricht on 2–6 June 1986. The reference to international obligations can also be found in the reports of Special Rapporteurs: see, for example, the report of the former Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Mr. Miloon Kothari E/CN.4/2002/59, 17.
Philip Alston and Gerard Quinn, ‘The nature and scope of States parties’ obligations under the International Covenant on Economic, Social and Cultural Rights', Human Rights Quarterly 9, no. 2 (1987): 191 (emphasis added). This article was prepared by the authors for the symposium on the implementation of the International Covenant on Economic, Social and Cultural Rights held in Maastricht in June 1986. The participants at this symposium agreed on the Limburg Principles. It should be noted that the Committee was established in 1985, but held its first session in March 1987.
I refer here to the ‘Concluding Observations’ which are the Committee's final conclusions from the ‘constructive dialogue’ with states' representatives and the examination of the state report.
The ‘general comments’ are elaborated by the Committee as a way to make available the experience gained through the examination of states' reports and are aimed to assist and promote the implementation of the Covenant. They are instruments for the clarification of the normative content of the Covenant.
The Committee devotes one day of each session to a general discussion of a particular right or of a particular aspect of the Covenant. The Days of General Discussion have assisted the Committee in developing the normative content of a number of rights.
The Committee itself applies the ‘tripartite typology’ to analyse international obligations. See, for example, General Comment No. 14, para. 39. In addition, see Concluding Observations Cameroon E/2000/22, para. 352; Concluding Observations Argentina E/2000/22, para. 276; and Concluding Observations Bulgaria E/2000/22, para. 236. The use of the tripartite typology with regard to international obligations has been included inter alia in Magdalena Sepúlveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (Antwerp: Hart, Intersentia, 2002) and S. Skogly, ‘The Obligation of International Assistance and Co-Operation in the International Covenant on Economic, Social and Cultural Rights’, in Human Rights and Criminal Justice for the Downtrodden: Essays in Honour of Asbjorn Eide, ed. M. Bergsmo (Dordrecht: Kluwer Law International, 2003), 403–20. See also the report of the former Special Rapporteur on the right to food, Jean Ziegler (e.g. E/CN.4/2005/47), and the work of some non-governmental organisations such as FIAN International, <http://www.fian.org>.
The Committee has made express reference to the international duty to respect with regard to the right to water (General Comment No. 15, para. 31) and health (General Comment No. 14, para. 39). In these two general comments the Committee goes beyond its General Comment on the right to food where it uses weaker language and indicates that ‘States Parties should take steps to respect the enjoyment of the right to food in other countries’. General Comment No. 12, para. 36. In addition, see Draft Guidelines: A Human Rights Approach to Poverty Reduction Strategies, prepared by the Office of the High Commissioner for Human Rights, 10 September 2002, para. 216, <http://www.unhchr.ch/development/povertyfinal.html> (accessed December 2007).
General Comment No. 2, para. 6 and General Comment No. 4, para. 19.
For a more detailed analysis on the Committee's approach on this point see: Magdalena Sepúlveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (note 28), 218–22, 237–8.
General Comment No. 15, para. 31.
A/RES/55/2, para. 26.
General Comment No. 15, para. 32.
A/RES/55/2, para. 9.
See, for example, General Comment No. 8, ‘Substantive issues arising in the implementation of the International Covenant on Economic, Social and Cultural Rights: Poverty and the International Covenant on Economic, Social and Cultural Rights’, statement adopted by the Committee on Economic, Social and Cultural Rights on 4 May 2001 E/C.12/2001/10, para. 12, Declaration on the Right to Development, adopted by General Assembly Res. 41/128 of 4 December 1986.
See, for example, ‘Voluntary Guidelines to support the progressive realization of the right to adequate food in the context of national food security’, No. 16.
See, for example, Jeffrey D. Sachs, John W. McArthur, Guido Schmidt-Traub, Margaret Kruk, Chandrika Bahadur, Michael Faye and Gordon McCord,‘Ending Africa's Poverty Trap. UN Millennium Project', 162, <http://www.unmillenniumproject.org/documents/BPEAEndingAfricasPovertyTrapFINAL.pdf> (accessed December 2008).
See General Comment No. 14, para. 39 and General Comment No. 18, para. 30.
General Comment No. 15, para. 33 and General Comment No. 14, para. 39.
For a comprehensive analysis of the responsibility of transnational corporations see Nicola Jägers, Corporate Human Rights Obligations: In Search of Accountability (Antwerp: Hart/Intersentia, 2002), 165. See also Olivier De Schutter, ‘Transnational Corporations as Instruments of Human Development’ in Human Rights and Development. Towards Mutual Reinforcement, ed. P. Alston and M. Robinson (Oxford: Oxford University Press, 2005), 403–46.
For example, General Comment No. 18, para. 30; General Comment No. 15, para. 35; and General Comment No. 11, para. 56.
General Comment No. 15, para. 35. Again, although the Committee has stressed this obligation only with regard to the right to water, this is undoubtedly an obligation with regard to all substantive rights.
Concluding Observations Iceland E/C.12/1/Add.89, para. 20.
For example, in General Comment No. 14 the Committee states that ‘States Parties have an obligation to ensure that their actions as members of international organisations take due account of the right to health’. The Committee has stressed this duty in several Concluding Observations, such as Concluding Observations Germany E/2002/22, para. 673 and Concluding Observations Sweden E/2002/22, para. 731.
This point is also stressed by ‘The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights’, in SIM Special No. 20, ed. T.V. Boven, C. Finterman and I. Westendorp (Utrecht: SIM, 1998), No. 3, para.19, Acts by International Organizations: ‘The obligations of States to protect economic, social and cultural rights extend also to their participation in international organizations, where they act collectively. It is particularly important for States to use their influence to ensure that violations do not result from the programmes and policies of the organizations of which they are members. It is crucial for the elimination of violations of economic, social and cultural rights for international organizations, including international financial institutions, to correct their policies and practices so that they do not result in deprivation of economic, social and cultural rights. Member States of such organizations, individually or through the governing bodies, as well as the secretariat and nongovernmental organizations should encourage and generalize the trend of several such organizations to revise their policies and programmes to take into account issues of economic, social and cultural rights, especially when these policies and programmes are implemented in countries that lack the resources to resist the pressure brought by international institutions on their decision-making affecting economic, social and cultural rights.’
In the case of ‘developing states’ the Committee has requested that they take measures to protect vulnerable groups from adverse affects that they may have suffered due to measures adopted as a consequence of an agreement with an international financial institution. See, for example, Concluding Observations Philippines E/1996/22, para. 124, Bulgaria E/2000/22, paras 221 and 236, Argentina E/2000/22, paras 258 and 276 and Cameroon E/2000/22, para. 352.
Concluding Observations Germany E/2002/22, para. 673. See also Concluding Observations France E/2002/22, para. 881.
Concluding Observations Italy E/2000/22, para. 126.
Concluding Observations Belgium E/2001/22, para. 493.
‘Committee urges the state party to increase its efforts to provide international assistance to developing countries and to establish a time frame within which the internationally accepted goal of 0.7 per cent of GNP set by the United Nations will be achieved. The Committee also encourages the state party, as a member of international financial institutions, in particular IMF and the World Bank, to do all it can to ensure that the policies and decisions of those institutions are in conformity with the obligations of states parties to the Covenant, in particular the obligations contained in article 2, paragraph 1, and articles 11, 15, 22 and 23 concerning international assistance and co-operation.’ Concluding Observations Japan E/2002/22, para. 614.
See, for example, Concluding Observations Slovakia E/C.12/1/Add. 81, para. 21.
Along this line of argument, see the ‘human rights impact assessment’ required of Germany by the Committee after examining its fourth periodic report E/2002/22, para. 674.
General Comments No. 11: ‘A State party cannot escape the unequivocal obligation to adopt a plan of action on the grounds that the necessary resources are not available. If the obligation could be avoided in this way, there would be no justification for the unique requirement contained in article 14 of the Covenant which applies, almost by definition, to situations characterized by inadequate financial resources. By the same token, and for the same reason, the reference to “international assistance and cooperation” in article 2, paragraph 1 and to “international action” in article 23 of the Covenant are of particular relevance in this situation. Where a State party is clearly lacking in the financial resources and/or expertise required to “work out and adopt” a detailed plan, the international community has a clear obligation to assist.’
Ibid., para. 11.
General Comment No. 18, para. 29. Unfortunately, the Committee's language is somewhat weak. Although it directly refers to the states' ‘commitments’ it then uses the word ‘should’.
See, for example, General Comment No. 14, para. 39.
It is interesting to note that for some state representatives, the 0.7% GNP target is considered an obligation. For example, the Canadian Minister of International Cooperation, Aileen Carroll, repeatedly stated that Canada is obliged to meet the international standard, to devote 0.7% of gross domestic product to foreign development assistance. See Embassy: Diplomacy This Week, Canada's foreign policy newsweekly, Ottawa, 23 February 2005, 3, <http://www.embassymag.ca/pdf/2005/022305_em.pdf> (accessed December 2008).
See, for example, Concluding Observations Finland E/2001/22, para. 449 and Concluding Observations Belgium E/2001/22, para. 492.
Concluding Observations Japan E/C.12/1/Add.67, para. 37. The same wording has been used for example with regard to Germany (E/2002/22, para. 675); however, in other cases the Committee merely ‘recommends’ increasing official development assistance to 0.7% GNP; see, for example, Concluding Observations Iceland E/2004/22, para. 231.
See, for example, Concluding Observations France E/C.12/1/Add.72, paras 14 and 24.
See, for example, Concluding Observations Sweden E/C.12/1/Add.70, para. 7.
E/2004/22, para. 67.
Concluding Observations Germany E/2002/22, para. 675.
A/CONF.198/11, paras. 39–46. It is interesting to contrast the way that the Committee has interpreted this legally binding obligation with the commitments assumed through the UNMD where states undertake to ‘grant more generous development assistance, especially to countries that are genuinely making an effort to apply their resources to poverty reduction’: A/RES/55/2, para. 15.
General Comment No. 14, para. 39.
General Comment No. 14, para. 40.
General Comment No. 12, para. 38 and General Comment No. 14, para. 40. ‘States Parties have a joint and individual responsibility, in accordance with the Charter of the United Nations and relevant resolutions of the United Nations General Assembly and of the World Health Assembly, to co-operate in providing disaster relief and humanitarian assistance in times of emergency, including assistance to refugees and internally displaced persons. Each State should contribute to this task to the maximum of its capacities. Priority in the provision of international medical aid, distribution and management of resources, such as safe and potable water, food and medical supplies, and financial aid should be given to the most vulnerable or marginalized groups of the population. Moreover, given that some diseases are easily transmissible beyond the frontiers of a State, the international community has a collective responsibility to address this problem. The economically developed States Parties have a special responsibility and interest to assist the poorer developing States in this regard.
A/RES/55/2, para. 26.
General Comment No. 15, para. 34.
Although it has come closer to defining it in General Comment No. 18 (2005). The Committee notes that ‘to comply with their international obligations in relation to article 6, States parties should endeavour to promote the right to work in other countries as well as in bilateral and multilateral negotiations’ (para. 30). However, once again the Committee's language is not as strong as one might expect.
See, for example, General Comment No. 4, para. 10; General Comment No. 5, para. 13; General Comment No. 6, para. 18; General Comment No. 11, para. 11; Concluding Observations Sri Lanka E/1999/22, para. 86; Concluding Observations Nigeria E/1999/22, para. 129; Concluding Observations Surinam E/1996/22, para. 166; Concluding Observations Armenia E/2000/22, para. 312; and Concluding Observations Jamaica E/C.12/add.75, para. 23.
See, for example, Concluding Observations Ukraine E/1996/22, para. 271.
General Comment No. 2, para. 10.
Concluding Observations Moldova E/C.12/1/Add.91, para. 41.
Concluding Observations Moldova E/C.12/1/Add.91, para. 41.
See, for example, Concluding Observations El Salvador E/1997/22 paras. 171 and 185 and Concluding Observations Mexico E/2000/22, para. 387. See, in addition, General Comment No. 12, para. 19.
The Committee has recommended that international cooperation be devoted to the goal of implementing economic, social and cultural rights. See, for example, Concluding Observations Guatemala E/1997/22, para. 137, Concluding Observations Colombia E/1996/22, para. 202 and General Comment No. 14, para. 45.
See, for example, Concluding Observations Sri Lanka E/1999/22, para. 86; Concluding Observations Ukraine E/1996/22, para. 271; and Concluding Observations Colombia E/1996/22, para. 202. See, in addition, General Comment No. 4, para. 19.
See, for instance, Concluding Observations Sri Lanka E/1999/22, para. 86 and General Comment No. 12, para. 38.
See for example the ‘Draft Guidelines: Human Rights Approach to Poverty Reduction Strategies’ elaborated by the Office of the High Commissioner for Human Rights (note 12).
In the same line of argument see: ‘Poverty reduction and human rights: A practice Note’, UNDP (June 2003), <http://www.undp.org/governance/docs/HRPN (poverty)En.pdf> (accessed March 2008).
Concluding Observations Mexico E/2000/22, para. 381.
Concluding Observations Mexico E/2000/22, para. 394.
Concluding Observations Georgia E/2003/22, para. 429.
See General Comment with regard to the right to water (General Comment No. 15, para. 31) and health (General Comment No. 14, para. 39). Also: ‘Draft Guidelines: A Human Rights Approach to Poverty Reduction Strategies, prepared by the Office of the High Commissioner for Human Rights’ (note 12).
Res. 2002/24.
The OEWG held a total of five sessions: 2004 (23 February-5 March), 2005 (10–20 January), 2006 (6–16 February), 2007 (16–27 July) and 2008. The fifth and final session in 2008 took place in Geneva from 4–8 February (first part) and from 31 March to 4 April (second part).
At the time of writing, it was expected that the General Assembly would vote on the text during a plenary session on 10th December 2008.
Res. 1/3 of 29 June 2006.
The text of the OP-ICESCR referred to here is the one included as an annex to resolution 8/2 (18, June 2008) of the Human Rights Council.
The inter-state complaints mechanism established under the ICCPR has never been used, although the treaty entered into force in 1976. The Inter-State complaints mechanism established under the European Convention for the Protection of Human Rights and Fundamental Freedoms is the only one which has been employed with any frequency (most recently in the 2007 case of Georgia v. Russia, case 13255/07).
Article 2 OP-ICESCR: “Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant by that State Party. Where a communication 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”.
See Article 3 OP-ICESCR. According to this provision, the rule of exhaustion of domestic remedies does not apply when the remedies are unreasonably prolonged. Under international human rights law it is also well established that this rule does not apply when the application of such remedies is ‘unlikely to bring effective relief’ (see e.g. Art. 5 First Optional Protocol to ICCPR, Art. 46(2) American Convention on Human Rights, and OP-CEDAW Rules of Procedure 69 (6)).
Participation requires access to appropriate information (e.g. information in the local language) and on a regular basis. This information should be provided without discrimination, taking special care that vulnerable and disadvantaged groups within the community, such as women, indigenous groups and minorities, have effective access to it.
See D. Sullivan, ‘Commentary on the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women’, in Optional Protocol to the International Convention on the Elimination of All Forms of Discrimination Against Women (San José de Costa Rica: Inter-American Institute of Human Rights, 2000), 71–9.
General Comment No. 2, para. 7.
In reference to litigation at the domestic level, Alston and Bhuta mention: ‘the litigation or the threat of litigation may greatly enhance the bargaining power of local communities vis-à-vis state and national bureaucracies and other centres of political power’. This would also be the case regarding litigation at the international level. See P. Alston. and N. Bhuta, ‘Human Rights and Public Goods: Education as a Fundamental Right in India’, in Human Rights and Development. Towards Mutual Reinforcement, ed. P. Alston and M. Robinson (Oxford: Oxford University Press, 2005), 261.
See Millennium Development Goals Report 2007 (note 2), 28.
See, for example, OHCHR, Frequently Asked Questions on a Human Rights-Based Approach to Development Cooperation (Geneva: OHCHR, 2006), <http://www.ohchr.org/Documents/Publications/FAQen.pdf> (accessed December 2008).
As was stated by the Secretary General of the United Nations in the follow-up to the outcome of the Millennium Summit, although the concept of ‘mainstreaming’ human rights has gained greater attention in recent years, it has still not been adequately reflected in key policy and resource decisions. In addition, human rights treaty bodies, too, need to be much more effective and more responsive to violations of the rights that they are mandated to uphold. See In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary-General, UN doc A/59/2005, paras 144 and 147.