Moving forward to approving an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

1. It is almost ten years since the issue of an Optional Protocol to the ICESCR is at the Commission on Human Rights and it is necessary to note that the process that should lead to the adoption of a protocol is making progress with an extreme slowness, not to say that it has gone around in circles. This situation could be compared with the approximate two years that took the adoption of the Optional Protocol to the Convention on the Elimination of all forms of Discrimination Against Women.

2. A factor that aggravates this delay is the fact that the Draft made by Committee of the ICESCR, introduced to the Commission in 1997¹, which was supposed to be the grounds for discussion, has been set aside.

3. The reason for such an extreme slowness, that looks very much as stagnation is that, at a planetary scale, two antagonistic trends oppose each other as regards international law. One defends the idea of a public law coming from states and international organisations, and the other one advocates a privatisation of law, a sort of corporative law, guided by the transnational economic power’s interest.

4. The first one considers that human being and his/her rights, amongst which economic, social and cultural rights, must be the grounds of all juridical order. Such a conception is reflected in the Universal Declaration, the two International Covenants and other international instruments.

5. For the second one, the grounds of international juridical order must be subordinated to free market, consisting in fact, of an absolute and excluding control of big transnational monopolies. To this trend, the state must have enough effective institutions as to attract foreign investments, whatever the social cost such investments carry. This is what in now called “good governance”, that is, the state does not intervene in economic life, except for fixing rules that favour free market, including labour free market.

6. This last conception shows a planetary net of rules contrary to public law, both national and international, currently in force by way of bilateral treaties to protect foreign investments (some 2000 currently in force), regional treaties such as the NAFTA, the planned FTAA, and the World Trade Organization General Agreements on Trade in Services (GATS), on Trade-Related Investment Measures (TRIM), Trade-Related Aspects of Intellectual Property Rights (TRIPS), etc.

7. This corporative law has got also its specific jurisdictions. One of them is the International Centre for Settlement of Investment Disputes (ICSID) whose President is not other but the World Bank President, and whose rules do not include those referred to human rights and environmental law. The ICSID, with the lack of objectivity and impartiality inherent to the World Bank, sets courts of arbitration that settle controversies between transnational corporations and the states that accept to be submitted to its arbitration.

8. Another jurisdiction of this corporative law is the WTO Dispute Settlement Body that is generating by means of case law, a set of international rules that elude completely any control from states and ignore –as the ICSID- basic rules of international human rights law.

9. Thus, it is not surprising that those who defend this law at the service of corporations try to block the process towards the adoption of an Optional Protocol to the Covenant on Economic, Social and Cultural Rights, that enables victims of human rights violations to file claims before the Committee of the Covenant. In other words, they object to the creation, in the framework of public international law currently in force, of quasijurisdictional instances of public law that counterbalance corporative jurisdictions such as those at the ICSID and at the World Trade Organisation, just mentioned.

10. There are academic works that defend this trend to the corporativization of law and object to the adoption of an Optional Protocol. One of these works is the one published in the issue of July 2004 of the American Journal of International Law, whose authors are Michael Dennis and David Stewart, both of them officials of the State Department of the United States, a country that, as everybody knows, is the major policeman and main beneficiary of the transnational economic power.

11. The article’s authors after quoting critically General Comments 14 and 15 of the Committee on Economic, Social and Cultural Rights, that mention the International Monetary Fund, the World Bank and the World Trade Organization as bodies that must also respect economic, social and cultural rights, they state the following (in pages 499 and 500):

“In short, should the approach of the Committee on Economic, Social and Cultural Rights be approved, probably a new claiming mechanism, far from giving clarity, might provoke confusion as regards the international dimension of economic and social rights. It is extremely unlikely that main donor countries accept guidelines… aimed at subordinating the activities of international organizations to the International Covenant on Economic, Social and Cultural Rights.”

12. The idea that the International Covenant on Economic, Social and Cultural Rights is not applicable to big powers (called “donor countries” by the authors) and their instruments: World Bank, International Monetary Fund and World Trade Organization, appears transparent in the aforementioned paragraph.

13. In following pages, the authors argue against the so-called “permeability” of the different categories of human rights. On one hand, the old theory that only civil and political rights are “real human rights” and economic and social rights are mere aspirations, reappears and, on the other hand, they say there is an impermeable wall that sets apart both categories of rights.

14. Needless to point out that nowadays no one, except the business world and its allies, seeks to implicate the principle of indivisibility and interdependence of human rights. Such principles have been reaffirmed several times – even if they do not respect their commitments – is also contained in the Proclamation of Teheran of 1966 as well as in the Vienna Declaration of 1993.

15. Many national tribunals and the European Court of Human Rights have recognised such “permeability” of human rights. The European Court, in the judgement “Airey v. Ireland (9/10/79, Series A nº 32) has said: “The Court therefore considers, like the Commission, that the mere fact that an interpretation of the Convention may extend into the sphere of social and economic rights should not be a decisive factor against such an interpretation; there is no water-tight division separating that sphere from the field covered by the Convention.”

16. It is a long time since, many specialists hold reasonably that both categories of rights cannot be dissociated because human being cannot be dissociated either and the common denominator of all human rights is dignity, inherent to humans.

17. The American Association of Jurists, the Europe Centre- Third World and the International League for the Rights and Liberation of Peoples consider that these two approaches, one holding that international public law of human rights must prevail, and the other stating that pre-eminence correspond to interests of transnational corporations, are not only antagonistic but irreconcilable.

18. Consequently, the AAJ, the CETIM and the LIDLIP consider that the Commission and the Working Group have the obligation, even if without consensus, to move forward rapidly towards the approval of a draft Optional Protocol, based upon the Draft by the Committee on Economic, Social and Cultural Rights.

19. To continue accepting the current blockade situation would be an implicit recognition of the subordination of interstate organs of the United Nations system to the interest of big economic groups.