Magdalena Sepulveda, Nantes, enero 2006
Human Rights protection in Latin America
The need for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights to complement the national and regional system for the protection of human rights in Latin America.
There was wide consensus among representatives from academic institutions, non-governmental organizations, and a inter-governmental institution (Inter-American Commission on Human Rights) from Latin America who participated in the “High level experts seminar on economic, social and cultural rights” in Nantes on 5-7 September 2005 on the need for the adoption of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR).
In general, this view was also shared by government representatives from the region who participated in the meeting such as those from Argentina, Brazil, Chile, Panama and Guatemala. This position is consistent with that advanced by the GRULAC (Group of Latin American and Caribbean Countries), during the two sessions of the Open-Ended Working Group and the 60th and 61st sessions of the United Nation Commission on Human Rights. Indeed, the support and votes of Latin American countries have been essential for the continuity of the process in the Commission (1).
Momentum toward the adoption of an OP-ICESCR has also been evident during several national seminars in which high government officials have openly expressed their support for the process. Worth stressing here are, for example, the international seminar on economic, social and cultural rights held in Mexico City (August 18-19, 2005) organized by the Mexico-European Commission Human Rights Cooperation Program, in which the Director General of the Office of Human Rights and Democracy of the Ministry of Foreign Affairs, Juan José Gómez Camacho, emphasized that the Government of Mexico would propose that drafting begin on a comprehensive protocol (2). In the same vein, in a seminar organized by University Diego Portales in Santiago de Chile, Ms. Amira Esquivel, Director of Human Rights of the Ministry of Foreign Affairs stressed the Chilean position to support the adoption of the Optional Protocol (3).
The Nantes seminar provided an opportunity to gather different governments and experts from around the world to express their views on an OP-ICESCR and try to build the necessary consensus to push forward a process long supported by civil society organisations and academics. The seminar also showed that such a consensus exists, at least in Latin American.
In general, Latin American governments, academic institutions and non-governmental organisations agree that the Protocol would increase the justiciability of these rights at the domestic level and would complement the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador”) (4). As stressed during the Conference, in particular by Ariel Dulitzky, Secretary of the Inter-American Commission on Human Rights, an OPICESCR would not duplicate the “Protocol of San Salvador”, but would rather be its necessary complement.
The Protocol of San Salvador protects numerous rights, which are generally those included in the ICESCR, but it also includes rights which are not envisaged in the Covenant, such as the right to a healthy environment (Article 11) and the right to the formation and the protection of the family (Article 15). The Protocol also provides for the protection of vulnerable and disadvantaged groups such as children (Article 16), the elderly (Article 17) and the handicapped (Article 18).
However, the Protocol also has some limitations that an OP-ICESCR could remedy. On the one hand, if we compare the Protocol of San Salvador with the ICESCR, we find that there are some shortcomings in regard to the rights protected. For example, the Protocol does not envisage the right to adequate housing which is included in Article 11 ICESCR. This is an important omission taking into account the importance of this right and its development in the work of the Committee on Economic, Social and Cultural Rights (5).
In addition, sometimes, the obligations recognised in the Protocol are “softer” than those included in the Covenant. For example Article 13 of the Protocol states that “primary education should be compulsory and accessible to all without cost” (emphasis added). In contrast, the ICESCR establishes a stricter obligation as it states that primary education “shall” be compulsory and available free to all (Article 13 ICESCR) (emphasis added). Therefore, an OP-ICESCR would provide further protection to those rights envisaged in the Covenant but not included in the Protocol of San Salvador, or envisaged in it in a weaker form.
Significant complementarity between the Protocol of San Salvador and a future OPICESCR would exist in regard to the mechanisms of supervision. The principal monitoring system established under the Protocol of San Salvador is a reporting system but it also provides for an individual complaints system which limits the possibility to submit complaints for alleged violations of only two rights: (i) the right of workers to form and join trade unions (Article 8.a) and (ii) the right to education (Article 13). Therefore, an OP-ICESCR would enable alleged victims of violations of other economic, social and cultural rights to, after exhausting domestic remedies, submit individual complaints to an international supervisory body.
An OP-ICESCR could also allow for the Committee on Economic, Social and Cultural Rights to investigate, on the basis of reliable information received or on its own initiative, situations that appear to reveal a consistent pattern of gross and systematic violation of economic, social and cultural rights within a State party. Such a mechanism is not contemplated by the Protocol of San Salvador.
In sum, the Nantes Conference was an international forum in which government representatives, civil society organizations and academic institutions from Latin America concurred in expressing what seems to be the desire of the people in the region : that it is necessary to adopt an Optional Protocol to the ICESCR which would complement the regional human rights treaty in the area of economic, social and cultural rights.
(1) : See, for example, E/CN.4/2005/52 paragraphs 7 and 59. In the same vein, see the Latin American countries’voting pattern on ESCR topics during the 60th session on the Commission on Human Rights (E/CN.4/2004/L.10/Add.10). In its resolution 2004/29, the Commission decided to renew for a period of two years the mandate of the open-ended working group to consider options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights.
(2) : Further information available at : www.sre.gob.mx/comunicados/comunicados/2005/agosto/b_155.htm and www.pdhumanos.org/actividades/seminarios/programa_sem5.pdf (last revised January 2006)
(3) : Further information available at: www.udp.cl/comunicados/1205/15/desc.htm (last revised January 2006).
(4) : Adopted at San Salvador, El Salvador on November 17, 1988, at the eighteenth regular session of the General Assembly. Entered into force on November 16, 1999.
(5) : See, for example, General Comment No. 4 on the right to adequate housing (E/1992/23) and General Comment No. 7 on forced evictions (E/1998/22, annex IV).