A Human Rights Approach to Millenium Development Goals

The International Journal of Human Rights Vol. 13, No. 1, February 2009, 86–109

The obligations of ‘international assistance and cooperation’ under the International Covenant on Economic, Social and Cultural Rights.

A possible entry point to a human rights based approach to Millennium Development Goal 8 Magdalena Sepu´lveda Carmona International Council on Human Rights Policy, Geneva, Switzerland 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.

Keywords: Millennium Development Goals (MDGs); human rights based approach; International Covenant on Economic, Social and Cultural Rights; international assistance and cooperation; state obligations

Introduction Since its adoption in 2000, the United Nations Millennium Declaration (UNMD) has received a great deal of attention and been put at the heart of the global agenda.1 The attention is indeed well deserved. The United Nations Millennium Summit was a crucial event in which the world leaders agreed to a set of goals and targets to combat poverty, hunger, disease, illiteracy, environmental degradation and discrimination against women. Over the intervening years, the Millennium Development Goals (MDGs) have been at the heart of the global development efforts.

Today, at a midpoint between the adoption of the MDGs and their 2015 target date, it is possible to say that slowly and unevenly the world is making some progress toward the MDGs but much remains to be done.2 It is recognized that some states face greater obstacles to achieving the MDGs and therefore that richer states should provide them with substantive assistance (financial and otherwise). The need to provide such assistance is a crucial underpinning of all MDGs and it is specifically addressed in Millennium Development

Email: Sepulveda@ichrp.org

ISSN 1364-2987 print/ISSN 1744-053X online # 2009 Taylor & Francis DOI: 10.1080/13642980802532424 http://www.informaworld.com

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Goal 8 (MDG 8), which calls for the ‘creat[ion] [of] a global partnership for development’.

At this point, it is clear that without adequate resources being made available to some countries it would be impossible for them to meet the MDGs. In order to achieve the MDGs a global coalition of states, civil society and the private sector is required. In this regard, the full involvement of the human rights movement is crucial. As many have argued before, the MDGs and human rights should be seen as ‘building blocks’. The development and human rights movements should work together to seek mutual complementarity in practice. On the one hand, actors in the human rights field should take into account and recognize the value of the MDGs. On the other hand, development actors should look at the existing mechanism provided under international human rights law to find ways to further collaborate.

The present article is a preliminary approach to look for concrete ways in which the human rights system and its legally binding obligations might assist in the achievements of the MDGs, in particular, MDG 8.

The article focuses on Article 2(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR),3 which imposes legally binding obligations of international assistance and cooperation upon its 159 states parties.4 The framework discussed in the article may be used to provide some form of accountability for compliance with MDG 8. The mechanism described is not a panacea; nonetheless, the aim is to stress the existing potential of the human rights machinery to provide tools to ensure compliance with the MDGs. This paper has been written from a human rights perspective and it aims to disseminate the work of the Committee on Economic Social and Cultural Rights, the supervisory body of the Covenant, defining the obligations of international assistance and cooperation under the ICESCR.5 First, it examines the scope and content of the obligations of international assistance and cooperation in Article 2(1) ICESCR by focusing on the interpretation given by the Committee on Economic, Social and Cultural Rights.

The paper then provides examples of how a human rights supervisory mechanism that is under negotiation at the United Nations could guarantee accountability for compliance by states with their obligations relating to international assistance and cooperation. This would be a concrete, albeit limited, venue for collaboration between the development movement and the human rights movement.6

The obligations of international assistance and cooperation in international human rights law The principle of international cooperation among states is established in the United Nations Charter (Articles 55 and 56) and has been subject to a number of subsequent developments.7 The most prominent inclusion of the principle of international assistance and cooperation is in Article 2(1) ICESCR: Each State party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with the view to achieving progressively the full realisation of the rights (emphasis added)

Therefore, the obligation for states parties to take steps to the maximum of their available resources refers both to the resources existing within a country and to those available from the international community though international cooperation and assistance.8

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The purpose of the reference to international assistance and cooperation in the Covenant is to emphasise that such cooperation must be oriented, as a matter of priority, to the realisation of all human rights, in particular economic, social and cultural rights.9 It is important to note that in addition to Article 2(1) ICESCR, reference to international assistance and cooperation is also included in Article 11 ICESCR (right to an adequate standard of living). Article 11(1) ICESCR establishes that states parties are to ‘take appropriate steps to ensure the realisation of this right [the right of everyone to an adequate standard of living], recognising to this effect the essential importance of international cooperation based on free consent.’ As set out in Article 11(2) ICESCR states parties, ‘recognising the fundamental right of everyone to be free from hunger, shall take, individually and through international cooperation’ the measures enumerated in the provision. Pursuant to the ‘Reporting Guidelines’, prepared by the Committee regarding the form and content of reports to be submitted by states parties,10 states are required to indicate the role of international assistance in the full realisation of each substantive right contained in the Covenant, except in the case of Article 8 ICESCR.11 The ICESCR is not a unique instrument in including an ‘international dimension’. For example, in a similar way, Article 4 of the Convention on the Rights of the Child (CRC) states ‘[. . .] with regard to economic, social and cultural rights, States parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation’.12 As is also the case with the Committee on Economic, Social and Cultural Rights, the Committee on the Rights of the Child has frequently inquired in its ‘Lists of Issues’13 as to whether ‘international assistance is needed’ for the fulfilment of the rights contained therein.14 Furthermore, it is not rare to find the Committee recommending that a state party ‘increase international assistance and to use the principles and provisions of the Convention as a framework for its programme of international development assistance’.15 At the regional level, international cooperation is included in Article 26 of the American Convention on Human Rights and in Article 1 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador).16 The scope and content of Article 2(1) ICESCR As a result of the diplomatic negotiations, the wording of Article 2(1) of the Covenant is elusive and complex. However, since its inception, the Committee has understood the necessity of clarifying the content of this provision. As early as 1990 (three years after the Committee’s first session), the Committee adopted a General Comment on Article 2(1) ICESCR in order to provide guidance and to eliminate some misconceptions about the meaning of this provision.17 Over the years, through its Concluding Observations, the Committee has had the opportunity to apply General Comment No. 3 while examining state reports and has provided guidance as to the meaning of the provision in specific circumstances.

In recent General Comments the Committee has noted that18 for the avoidance of any doubt, the Committee wishes to emphasize that it is particularly incumbent on States parties and other actors in a position to assist, to provide ‘international assistance and cooperation, especially economic and technical’ which enable developing countries to fulfil their core obligations

From this statement we can conclude that, according to the Committee, commitments with regard to international assistance and cooperation are closely linked to the obligation to

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comply with the ‘core obligations’. These refer to obligations to ensure the minimum essential level of each right.19 There are obligations of international character with regard to all states parties to the Covenant. Nonetheless, the obligations related to international assistance and cooperation are different for wealthier states and for states which should be the recipients of such assistance and cooperation. In the Committee’s words, such obligations are particularly incumbent on states parties ‘in a position to assist’ to provide ‘international assistance and cooperation, especially economic and technical’ to enable developing countries to fulfil their core obligations.20 The Committee seems to have interpreted Article 2(1) as imposing international obligations to provide assistance not only on states parties but also on ‘other entities’ which are ‘in a position to assist’.21 Despite the importance of international obligations upon non-state entities, this article will only address the obligations upon states parties.22 From the wording used by the Committee in the above-mentioned statements, there should be no doubt that the Committee considers that there are ‘legal’ obligations with regard to international assistance and cooperation.23 However, the scope and content of international obligations require clarification.

Obligations of developed states regarding international assistance and cooperation It is not easy to determine the implications of the reference to international assistance and cooperation with regard to developed states, understood as those states which are in a position to assist and cooperate with others. Before the Committee started to function, Alston and Quinn commented: [O]n the basis of the preparatory work it is difficult, if not impossible, to sustain the argument that the commitment to international cooperation contained in the Covenant can accurately be characterised as a legally binding obligation upon any particular state to provide any particular form of assistance. It would, however, be unjustified to go further and suggest that the relevant commitment is meaningless. In the context of a given right it may, according to the circumstances, be possible to identify obligations to cooperate internationally that would appear to be mandatory on the basis of the undertaking contained in Article 2(1) of the Covenant.

Moreover, policy trends and events in the general areas of international development cooperation subsequent to the adoption of the Covenant in 1966 may be such as to necessitate a reinterpretation of the meaning to be attributed today to Article 2(1).24

In the nearly 20 years that have passed since this statement was made, much water has passed under the bridge. Principally through the Committee’s work, the legal implications of the commitment to international cooperation contained in Article 2(1) ICESCR have been further developed.

Over the years, the Committee has referred to state obligations of an international character in various observations,25 comments,26 statements and in ‘days of general discussion’.27 The following analysis tries to present the heterogeneous work of the Committee in a systematic way seeking to define and elaborate upon the scope and content of Article 2(1) ICESCR. I will follow the well-known ‘tripartite typology’ (respect, protect and fulfil) which has been used to describe states’ obligations at the national as well as international level.28

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This duty requires states parties to avoid measures that hinder or prevent the enjoyment of the Covenant’s rights in another state. It refers to the duty to abstain from activities or measures that will have a negative impact on the enjoyment of economic, social and cultural rights outside its own territory.

In the light of the Committee’s work, it is possible to conclude that this level of obligation would require developed states to refrain from the following: (1) All actions that interfere, directly or indirectly, with the full realisation of economic, social and cultural rights in other countries, in particular with the rights of vulnerable groups within the recipient society.29 For example, in the light of General Comments Nos. 2 and 4, developed states must avoid involvement in projects which would result in large-scale evictions in another country,30 or abstain from participating in decisions of international financial institutions that may obstruct or hinder the realisation of economic, social and cultural rights.31 This duty is also addressed by the Committee in General Comment No. 15 on the right to water, which states that ‘any activities undertaken within the State party’s jurisdiction should not deprive another country of the ability to realise the right to water for persons in its jurisdiction’.32 It is worth noting that the approach taken by the Committee with regard to ‘vulnerable groups’ goes beyond the narrow focus on the UNMD, which seems to limit their commitment to ‘protecting the vulnerable’, to children and civilian populations suffering from natural disasters and humanitarian emergencies and natural.33 (2) Imposing embargoes or similar measures that prevent the supply of water or commodities essential for securing the rights enshrined in the Covenant. The Committee’s approach with regard to embargoes is expressed in General Comment No. 8, in which it refers to the relationship between economic sanctions and respect for economic, social and cultural rights. Additionally, in General Comment No. 15, referring to the right to water, the Committee stressed this duty, stating that ‘water should never be used as an instrument of political or economic pressure’.34 In this regard, this legal obligation, as interpreted by the Committee, goes beyond the commitment assumed by states in the UNMD in which they resolve only to ‘minimize the adverse effects of United Nations economic sanctions on innocent populations, to subject such sanctions regimes to regular reviews and to eliminate the adverse effects of sanctions on third parties’.35 (3) According to the Committee, it would be fair to conclude that when formulating their international assistance programmes, developed states should avoid imposing burdensome conditionalities. States’ assistance programmes should avoid the adoption of measures which are not guided by the needs of developing countries. Developed states should allow developing states to devise programs for the assistance received and should support implementation of such programmes instead of requiring countries to follow donor-designed reforms. Any such programme should have national ownership. Therefore, states should avoid taking measures that may not facilitate a sense of ownership of the programme within the recipient country. In the formulation and implementation of any international programme there should be active, free and meaningful participation of the beneficiaries.36

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Although not yet examined by the Committee, others types of action that a state party should avoid are, for example, using food as a means of political and economic pressure,37 dumping of toxic waste in developing countries or funding projects which impose user fees for essential health care or primary education.38 Obligation to protect This duty requires states parties to take measures to prevent non-state entities under their jurisdiction from interfering with the enjoyment of the Covenant’s rights abroad. In other words, it refers to the responsibility of a state party for the conduct of non-state actors who act extraterritorially or whose conduct has an extraterritorial effect. In addition, this level of obligation would require states parties to ensure protection of economic, social and cultural rights when adopting bilateral and multilateral agreements.39 The Committee has directly referred to this form of obligation with regard to the right to water and the right to the highest attainable standard of health, stating that ‘steps should be taken by State parties to prevent their own citizens and companies from violating’ the right to water and the right to health of individuals and communities in other countries. According to the Committee, ‘where states parties can take steps to influence other third parties to respect the[se] right[s], through legal or political means, such steps should be taken in accordance with the Charter of the United Nations and applicable international law’.40 It is submitted that the same obligation applies to all other substantive rights contained in the Covenant. In this regard, it can be argued that according to the Committee, developed states have an obligation to discourage practices which lead to violations of economic, social and cultural rights in another country, by penalising harmful behaviour and through the adoption of measures to prosecute perpetrators at the domestic level (e.g. in countries where the headquarters of transnational corporations are based).41 In addition, the Committee has emphasised the duty to protect by stating that when negotiating and ratifying international agreements, states parties should take steps to ensure that these instruments do not adversely impact upon the enjoyment of the rights.42 According to the Committee, agreements concerning trade liberalization should not curtail or inhibit a country’s capacity to ensure the full realisation of the Covenant’s rights.43 When examining the reports of developed countries, the Committee has sometimes urged them to take into account the provisions of the Covenant in bilateral agreements with other countries.44 Similarly, states parties have an obligation to ensure that their actions as members of international organisations, including international financial institutions, take due account of the Covenant’s rights45 and that violations of the Covenant do not result from programmes and policies of the organisations of which they are members.46 Although this obligation is applicable to all states parties to the Covenant, when examining state reports the Committee has distinguished between ‘developed States’, which are viewed as having an influence in the decision-making organs of the international financial institutions, and ‘developing States’ which are receiving loans and grants from financial institutions.47 For example, upon examining the fourth periodic report of Germany, the Committee encouraged ‘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 organisations are in conformity with the obligations of States parties to the Covenant, in particular the obligations contained in Article 2, paragraph 1, Articles 11, 15, 22 and 23 concerning international assistance and cooperation’.48 Similar statements have been included by the Committee in the Concluding Observations on the reports of other developed states such as Italy,49 Belgium50 and Japan.51

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Through these statements, the Committee is suggesting that states parties to the Covenant have the duty to ensure that the policies and decisions of the international financial institutions of which they are members are in conformity with the obligations imposed by the Covenant. By encouraging states to ‘do all they can’ it is apparent that the Committee considers there to be more than merely a negative obligation to refrain from designing or supporting policies or programmes that would violate the Covenant’s rights but, rather, a much more active role aimed at the implementation of the Covenant, particularly the obligation to assist and cooperate with other states.

Obligation to fulfil This obligation is divided by the Committee into three sub-categories: (a) the obligation to facilitate, (b) the obligation to provide, and (c) the obligation to promote. From an international perspective, all of these sub-categories refer to activities that a state party should undertake to fulfil the Covenant rights in another country.

A. Duty to fulfil (facilitate). The Committee has yet to clarify the precise content of this level of obligation at the international level. Nonetheless, we can argue that this obligation implies that the state must take positive measures aimed at enabling the enjoyment of the Covenant rights in other states. As a result, any international assistance and cooperation programme should provide for the institutional machinery that would facilitate the enjoyment of economic, social and cultural rights in the recipient country, and developed states must ensure that economic, social and cultural rights form an integral part of any existing international assistance programme.52 Stressing the indivisibility and interdependence of all human rights, the Committee has noted that international projects and approaches should contribute not only to economic growth or other broadly defined objectives, but also to enhancing enjoyment of the full range of human rights, in particular economic, social and cultural rights. Extrapolating from what the Committee has stated with regard to national programmes, it is possible to conclude that in structuring their official development assistance (ODA), developed states should be required, for example, to take into account not only the economic and financial aspects of their policies but also the human rights implications. States should ensure that ODA includes the necessary mechanisms to take into account, at an early stage of any programme, the impacts on vulnerable groups, women and the environment; that it empowers all stakeholders or groups otherwise affected by the programme to enjoy their Covenant rights and, that it includes mechanisms to ensure their participation.53 The duty to facilitate is particularly relevant with regard to the right to education. Under Article 13 ICESCR states parties have an obligation to adopt a plan of action within two years of the Covenant’s entry into force. In its General Comment No. 11 on the right to education, the Committee clearly stated that where a state party is clearly lacking in financial resources and/or the expertise required to ‘work out and adopt’ a detailed plan, the international community ‘has a clear obligation to assist’ the state in developing a plan of action. Nonetheless, this obligation seems to be addressed predominantly at the UN specialised agencies as opposed to states in a position to assist, because the Committee refers to the ‘international community’ in general54 and it specifically mentions the International Labour Organization (ILO), the United Nations Development Programme (UNDP), the United Nations Educational, Scientific and Cultural Organization (UNESCO), the United Nations Children’s Fund (UNICEF), the International Monetary Fund (IMF) and the World Bank.55 In General Comment No. 18 on the right to work, the Committee has come closer to defining the content of an international obligation to fulfil (provide) by stating:

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States parties should recognise the essential role of international cooperation and comply with their commitment to take joint and separate action to achieve the full realization of the right to work. States parties should, through international agreements where appropriate, ensure that the right to work, as set forth in Articles 6, 7 and 8 of the Covenant, is given due attention.56

B. The duty to fulfil (provide). This level would entail the duty of developed states to provide, subject to the availability of resources, a specific type of international assistance for the satisfaction of Covenant rights in other states.57 However, the main questions to resolve are: is there an obligation to provide a particular form of assistance, and does the obligation to assist and cooperate mean that there is an obligation to devote 0.7% of Gross National Product (GNP) to official development assistance?

Based on an examination of the Committee’s work, it is possible to conclude that the reference to international assistance and cooperation in Article 2(1) ICESCR has not been interpreted as imposing a general obligation to provide the 0.7% of GNP.58 So, the answer to the first question is in the negative.

Nonetheless, when examining the reports of developed states, the Committee has often recommended that each state ‘review its budget allocations for international cooperation with a view to increasing its contribution in accordance with the United Nations recommendation’.59 The Committee has encouraged states to establish a timeframe in which to achieve the target of 0.7% of the GNP. For example, when examining the second periodic report of Japan, the Committee ‘urged’ the state ‘to increase its efforts to provide international assistance to developing countries and to establish a timeframe within which the internationally accepted goal of 0.7 per cent of GNP set by the United Nations will be achieved’.60 When the percentage of GNP devoted to international aid by a state party has decreased, the Committee has expressed its regret,61 and when states have complied with the 0.7% target the Committee has commended them.62 For example, when examining the third periodic report of Luxembourg the Committee noted with satisfaction that Luxembourg allocates more than 0.7% of its gross domestic product to ODA.63 Examining the fourth periodic report of Germany, the Committee urged the state party ‘to ensure that its percentage of GNP devoted to official development assistance rises steadily towards the United Nations goal of 0.7 per cent’.64 In sum, it would be difficult to argue that the Covenant imposes a legally binding obligation upon any particular state to provide the equivalent of 0.7% of GNP to development assistance. The Committee seems to consider the target of 0.7% of GNP as a UN recommendation and not an obligation imposed by the Covenant. Nonetheless, we may also conclude that developed states have an obligation – subject to availability of resources – to take concrete steps towards the target of 0.7% of GNP as assistance to developing countries. This obligation may require developed states to set a timetable for increasing their ODA.65 In General Comment No. 14 on the right to health, the Committee stresses that ‘depending on the availability of resources, States should [. . .] provide the necessary aid when required’.66 Therefore, in relation to the right to health the Committee comes close to interpreting it as an obligation to fulfil (provide), although the language remains within the realm of the recommendation (‘states should’).

Although there may not be a general international obligation for developed states to provide for the satisfaction of the Covenant rights in less wealthy countries, such an obligation seems to arise in the context of disaster relief and humanitarian assistance. According to the Committee, ‘States parties have a joint and individual responsibility [. . .] to cooperate

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in providing disaster relief and humanitarian assistance in times of emergency, including assistance to refugee and internally displaced persons’.67 This international obligation seems to follow the same logic as the national obligation to provide, which arises when individuals or groups are unable, for reasons beyond their control, to realise the enjoyment of economic, social and cultural rights themselves by the means at their disposal. At the international level, the obligation to fulfil (provide) arises in case of disaster and humanitarian crisis. According to the Committee, each state should contribute to this task in accordance with its ability (General Comment No. 13) or ‘to the maximum of its capacities’ (General Comment No. 14, para. 40). Therefore, in this case, the obligation would depend on the available resources of the donor state concerned.68 The Committee’s interpretation of the obligations assumed by states under the ICESCR goes even further than the commitments assumed under the UNMD, where states resolve to ‘strengthen international cooperation, including burden sharing in, and the coordination of humanitarian assistance to, countries hosting refugees and to help all refugees and displaced persons to return voluntarily to their homes, in safety and dignity and to be smoothly reintegrated into their societies’.69 In addition, the Committee has determined that international assistance in the case of disaster relief should: (a) be provided in a manner that is consistent with the Covenant and other human rights standards; (b) give priority to the most vulnerable or marginalised groups; and (c) be sustainable and culturally appropriate.70 In any case, these obligations regarding international humanitarian assistance require further development as it would be difficult to maintain that all the Committee members have a clear-cut position on this topic.

C. Duty to fulfil (promote). The ultimate aim of a human rights approach to international assistance and cooperation is to assist the recipient state in implementing its treaty obligations. Although the Committee has not expressly referred to this duty as of yet,71 it is safe to say that this obligation would require that international assistance and cooperation programmes aim to increase the awareness of the Covenant rights in the recipient country and to empower people to identify and claim their rights. The programme should create an enabling environment for participation of all stakeholders. Stakeholders should be informed of any programme that will affect them, of their right to and of the opportunities to participate in decision-making processes as well as in the assessment of the programme. The compliance with this obligation might require that developed states include a human rights based approach in their national development policies.

Obligations of developing states regarding international assistance and cooperation The premise underlying Article 2(1) ICESCR is that some countries will not be able to achieve the full realisation of economic, social and cultural rights if those countries in a position to assist do not actually provide them with assistance. However, the Committee has emphasised the importance of mutual responsibility in this regard. Thus, it has also identified specific international obligations for developing states: states which receive international assistance and cooperation.

Following the Committee’s work it is possible to identify a series of duties for developing states: (1) The first duty for developing states is to seek international assistance: States parties to the Covenant that do not possess the necessary resources for the full realisation

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of the rights set forth in the Covenant are obliged, according to Article 2(1) ICESCR, to ‘actively seek assistance’ to ensure the enjoyment of economic, social and cultural rights for everyone under their jurisdiction.72 According to the Committee, every effort should be made by states in need of international assistance to obtain it.73 Developing states in need of international assistance may request it from (i) wealthier states, (ii) UN agencies, such as ILO, UNESCO, WHO and FAO, or (iii) other inter-governmental or non-governmental organisations, including international financial institutions such as the World Bank, the IMF or the InterAmerican Development Bank.

(2) According to General Comment No. 2, states are required to identify in their reports any particular needs that they may have for technical assistance or development cooperation.74 Nonetheless, sometimes the Committee itself indicates to states the specific area in which they should seek international assistance. For example, upon examining the initial report of Moldova, the Committee encouraged the government to seek international assistance in order to combat the phenomenon of human trafficking.75 Sometimes the Committee encourages ‘regional’ cooperation, which may entail South– South cooperation, to facilitate an exchange of views on successful strategies and practices.76 In the light of the Committee’s work, we may conclude that developing states are not only obliged to ‘seek assistance’ and to identify their needs for assistance, but additionally to comply with particular obligations when they are actually receiving assistance. In this regard developing states would be required: (1) To refrain from obstructing international organisations in their legitimate efforts to gain access to individuals under the jurisdiction of the state in order to assist them in the enjoyment of economic, social and cultural rights.77 Recipient states should facilitate the flow of assistance to the most vulnerable groups within society and they should take steps to ensure that international assistance is used effectively to achieve better protection of economic, social and cultural rights.

(2) To utilise the assistance received in a way that will contribute to the realisation of the object and purpose of the Covenant, giving priority to the satisfaction of the minimum core obligations.78 (3) To establish mechanisms to ensure an effective use of the international assistance received, to facilitate the distribution of the assistance received, to ensure that the intended recipients receive the assistance provided and to implement an effective monitoring regime.79 (4) To give priority to the fulfilment of the needs of the most vulnerable and disadvantaged groups within society when allocating the assistance received.80 In this regard, it is vital that international assistance be aimed at empowering women as well as protecting labour rights and the environment.

(5) To determine their own viable development or assistance programme and to establish specific benchmarks to measure performance in promoting realisation of economic, social and cultural rights and, particularly, non-discrimination and the rights to adequate food, adequate housing, health care, and primary and secondary education.81

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The principles of non-discrimination, participation and transparency in the implementation of obligations of international assistance and cooperation Through its work, the Committee seems to suggest that good faith in the implementation of Covenant obligations requires that states parties comply with some cross-cutting human rights principles which underpin the Covenant. While it has generally referred to these principles in relation to domestic or national obligations, it may also be concluded that they are applicable with regard to international obligations.82 According to the Committee, the principles of equality and non-discrimination are the foundations of all activities concerning economic, social and cultural rights. The Committee has not addressed the principle of non-discrimination with regard to international obligations, but given the fundamental nature of the principle we may say that all assistance and cooperation programmes should be formulated and implemented in a non-discriminatory and equitable manner. All states parties (both developed and developing states) must respect this principle when complying with their international obligations. In this regard, aid given for commercial or political reasons might be considered discriminatory.

The principle of non-discrimination requires, for example, that developing states take measures to avoid any distinction, exclusion or preference on the ground of race, colour, sex, religion, political opinions, social origin or any other status in the implementation of programmes financed through development aid. Any distinction or preference should have an objective and reasonable justification. In this regard, it is particularly important to avoid gender inequality in the enjoyment of a given programme or to avoid affecting a specific minority or indigenous group in a disproportionate manner.

From a human rights perspective, participation implies inclusion. It requires compliance with specific rights such as access to information, freedom of assembly, the right to vote, the right to form and join trade unions and the right to strike, as well as freedom of opinion and expression.

Transparency is also important and states parties to the Covenant must take effective measures to combat corruption in international assistance and cooperation programmes.

According to the Committee, corruption has negative effects on the full implementation of economic, social and cultural rights.83 The illegal diversion of resources received through international assistance affects the developing state’s ability to satisfy the economic, social and cultural rights of the population because the money ends up in the bank accounts of corrupt officials instead of being used for the satisfaction of the minimum core content of the rights. Moreover, it can jeopardize the health and safety of citizens through, for example, poorly designed infrastructure projects which do not make appropriate use of all allocated resources. The existence of corruption in the implementation of an international assistance programme also affects the donor country (‘developed state’) because international assistance is ultimately paid for by its taxpayers.

In sum, there is no doubt that the illegal diversion of resources received by international assistance violates the obligations arising from Article 2(1) ICESCR. In order to make effective use of the funds allocated to international assistance and cooperation, states parties must take all necessary measures to increase transparency and accountability during the formulation and implementation phases of international assistance and cooperation programmes, including taking legal action against those responsible for acts of corruption.84 In addition, to enable developing states to implement effective, efficient and transparent systems for mobilising and managing the resources received through international assistance, in certain circumstances it may be essential that technical assistance be aimed to develop a strong justice system in the recipient states. A modern judicial system increases transparency and accountability and thereby helps to curtail corruption.

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As stated by the Committee, states should ‘take effective measures to combat corruption and, in particular, to increase transparency and consultations at all levels of decision-making and concerning the evaluation of distribution of funds, especially with regard to the determination of the use of aid, the monitoring of fund distribution and the evaluation of impact’.85 Finally, it is possible to say that international assistance programmes undertaken by developed and developing states should allow the widest possible participation of all stakeholders.

States must ensure active and meaningful participation of members of civil society when designing, implementing and assessing their international obligations. The Committee has stressed the need for participation in particular in relation to ‘Poverty Reduction Strategies’.86 Enhancing accountability for international assistance and cooperation obligations: the Optional Protocol to the ICESCR In the previous sections, the paper has described the international obligations of the states parties to the ICESCR. Needless to say, all of the obligations under the ICESCR are mandatory (legally binding) for states, but we must recognise that this treaty has a very weak supervisory mechanism. Beyond the recommendations prepared by the Committee on the basis of the report submitted by the state, there is no other way to oblige states to comply with these obligations. Fortunately, the negotiations to reinforce the supervisory mechanism of the ICESCR through an Optional Protocol are well developed. Once adopted, the OP-ICESCR will enable the Committee on Economic, Social and Cultural Rights, an international expert body, to assess states’ compliance with the obligations of international assistance and cooperation imposed by the Covenant (Article 2(1) ICESCR).

The question of adopting an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) providing for a system of individual and group complaints was under consideration by the international community for years.

However, it was only in 2002 that the former Commission on Human Rights established the ‘Open-ended Working Group on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’ (OEWG) ‘with a view to considering options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights’.87 In 2006, the then newly established Human Rights Council changed the mandate of the OEWG giving it a specific mandate ‘to elaborate’ the Optional Protocol.88 The OEWG completed its mandate in 2008 when, on the last day of the fifth session, it agreed to transmit the draft OP-ICESCR to the Human Rights Council for consideration.89 A major step was taken when the Human Rights Council adopted the Optional Protocol (Resolution 8/2. 18 June 2008). The last step for its formal adoption is the vote of the General Assembly.90 According to the existing text of the OP-ICESCR, non-compliance with the obligations of international assistance and cooperation referred to in Article 2(1), could fall under the purview of the various supervisory mechanisms it establishes.

The OP-ICESCR91 includes the following three mechanisms: (a) Inter-State complaint (Article 10 OP-ICESCR; (b) Individual and collective complaints (Articles 1 and 2 OPICESCR); and (c) Inquiry mechanism (Art. 11OP-ICESCR).

Article 2(1) ICESCR under an inter-state complaints mechanism (Art. 10 OP-ICESCR) Under this mechanism states parties will be allowed to initiate a procedure against another state party which is considered not to be fulfilling its obligations under the ICESCR. Such a

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complaint may only be submitted if both states have recognised the competence of the Committee to receive this type of complaint.

While it is important that this mechanism is included in the OP-ICESCR, it may not be the most effective means of supervising compliance with obligations of international assistance and cooperation. Inter-state complaints mechanisms under other treaties are seldom used,92 not least because inter-state relationships are delicate. However, it is possible to imagine some scenarios in which an inter-state complaint might be a good means with which to enforce international obligations of assistance and cooperation. This mechanism provides room for negotiations between the two states concerned, which are called to find a friendly settlement. This could well be a good opportunity to resolve outstanding issues regarding compliance with international obligations.

Article 2(1) ICESCR under a complaints procedure (Articles 1 and 2 OP-ICESCR) The OP foresees the possibility of submitting communications by individuals or groups of individuals claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant.93 Hence, the main question to address is how the Committee will supervise compliance with the obligations relating to international assistance and cooperation under a complaints mechanism.

In general terms, under a complaints mechanism the Committee would need to assess whether in a concrete case the alleged victim(s) has suffered a violation of her/his Covenant rights due to an action or omission attributed to a state party to the Covenant. There must be a causal link between the state action or omission and the violation of the victim’s rights and the petitioner must have exhausted all domestic remedies before submitting the case to the Committee.94 The challenge would be to establish the proper procedures to enable the victims to approach a foreign state which is party to the Covenant requesting remedies or compensation for its actions or omissions.

For example, in the case of a developing state (State A), the Committee would examine whether or not State A has violated any right included in the Covenant in the implementation of an international assistance or cooperation programme. The Committee would examine, for example, whether during the implementation phase of the project State A has complied with the right to just and favourable conditions of work (Article 7 ICESCR) with regard to the staff employed or the prohibition of discrimination (Article 2(2) ICESCR). The Committee would also examine whether or not the state has provided to individuals affected by the programme the opportunity to participate in the planning and execution of the project and to what extent their comments, suggestions or complaints have been dealt with in a fair manner at the domestic level.95 It would also examine whether or not the people affected by the project have had access to effective judicial or other appropriate remedies at the national level (e.g. in a case of expropriation, whether the affected individuals have been compensated for the loss of land).

A complaints mechanism could also provide an opportunity to expose and take actions against corruption in the implementation of an international assistance programme. For example, in the case where a developed state gives funds to provide for antiretroviral medicines to a group of HIV-infected persons in a developing state, but corrupt authorities divert the money received, the affected individuals – those who will not receive the medicines – may also be able to submit a complaint against their state.

In general, the duties of developing states under Article 2(1) ICESCR are of a domestic character so they do not present any major obstacle to international supervision through a complaints procedure.

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Greater difficulties would arise with regard to complaints alleging violation of the obligations of developed states under Article 2(1) ICESCR. As stated, there are international obligations to respect, protect and fulfil. The first aspect (obligation to respect) would not pose further undue problems. A state party would be responsible for its actions which interfere directly with the enjoyment of economic, social and cultural rights in other countries. There must be a causal link between the state’s behaviour and the harm in another state.

In the case of the obligation to protect, the state would be responsible for the failure to prevent entities which are subject to its control from violating the enjoyment of rights in another country. For example, State B has not taken any action to ensure that a transnational corporation (with headquarters in that state) respects labour rights in another state. In this case the ‘home state’ would be responsible for not having regulated, investigated and brought to justice, under its own jurisdiction, the wrong-doing of the corporation headquartered in its territory. This type of cases would require a high standard of proof; however, we should not exclude the possibility that a well-prepared international NGO could successfully present such a case.

An international obligation to protect might also be considered to be violated if a developed state (party to the Covenant) enters into a bilateral or multilateral agreement with a developing state to financially assist specific projects, such as the construction of a dam or a micro credit project for indigenous peoples, but is manifestly negligent in assessing the human rights impact of its assistance programme (e.g. the project did not consider the impact on the way of life of indigenous peoples). In this case, a complaint would require the Committee to examine to what extent the donor state took into account its obligation under the Covenant when entered into a bilateral or multilateral agreement.

Taking into account that an individual or group of individuals affected by the project wishing to submit a claim to the Committee would generally be required to prove a causal link between the rights violated and the state party action or omission, it would be difficult (although not impossible) to demonstrate a violation of a state obligation.

Finally, considering that according to the Committee’s current interpretation of Article 2(1), there would be no obligation to provide international aid, under the Optional Protocol, individuals or groups would not be able to submit a complaint against a developed state requiring it to provide a specific form of financial or technical assistance and cooperation to another state. As discussed, this is not the interpretation that has been given to Article 2(1) of the Covenant.

Nonetheless, the complaint mechanism of the OP-ICESCR would be an appropriate manner in which to monitor compliance by developed states with their international duties to respect and protect included in Article 2(1) ICESCR. Despite the difficulties and limitations that may arise in submitting complaints for non compliance with the obligations imposed by Article 2(1) ICESCR, these complaints would ensure more effective decision-making regarding international assistance and cooperation programmes by ensuring external international evaluation in order to avoid violating of economic, social and cultural rights by both donors and recipient states. It could also provide transparency and accountability to international assistance programmes that would strengthen any existing national auditing procedures.

Article 2(1) ICESCR under an inquiry procedure (Article 11 OP-ICESCR) The inquiry procedure envisaged under the OP-ICESCR allows the Committee on Economic, Social and Cultural Rights to investigate, on the basis of reliable information

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received, situations that appear to indicate grave or systematic violations by a state party of any economic, social and cultural right.

As has been noted, this mechanism allows the Committee to respond in a timely fashion to serious violations that are in progress instead of waiting until the next state report is examined. In addition, the procedure offers a means of addressing situations in which individual or collective complaints do not adequately reflect the systematic nature of violations of rights. The inquiry mechanism would also allow the Committee to address situations in which individuals or groups are unable to submit communications due to practical constraints or fear of reprisals.96 How would the Committee supervise the obligations regarding international assistance and cooperation through an inquiry procedure? For example, imagine that a hydroelectric dam construction scheme in a developing state is funded by developed states. The Committee will be able to begin an inquiry if it receives reliable information that the construction of this dam is causing grave and systematic violations of economic, social and cultural rights such as the right to food (by limiting access to land) and adequate housing (due to evictions) of people living in the affected area.

The inquiry would allow the Committee to evaluate compliance with the Covenant’s obligations by all states parties to the Covenant. The Committee would be able to request the cooperation of all relevant states parties and to initiate a confidential investigation regarding their compliance with the obligations of international assistance and cooperation. After examining the information and receiving each state’s comments, the Committee would examine whether or not each state, to the extent that they were responsible, has for example taken into account their Covenant obligations in the design and implementation of the project or to what extent they took into account foreseeable negative effects of the project on the enjoyment of economic, social and cultural rights of the affected individuals.

The Committee could also inquire whether the states have seriously evaluated and taken measures to: prevent discrimination against indigenous peoples and minorities; ensure the disabled are not neglected; avoid an unequal effect for men and women; incorporate the necessary mechanisms to ensure transparency and accountability in all phases of the project.

After its assessment, the Committee would provide its comments and recommendations as to the compliance by each state party with their obligations regarding international assistance and cooperation. This mechanism would provide states with an opportunity to incorporate changes in the planning or implementation of the international assistance and cooperation programmes.

There seem to be no major obstacles to using the inquiry mechanism to supervise compliance with Article 2(1) ICESCR. The possibility of initiating a confidential investigation and eventually sending a mission to meet the responsible government authorities and to seek the views of judicial authorities, national or local representatives of civil society and the alleged affected individuals would assist in the protection of economic, social and cultural rights and ultimately the individual stakeholders in the given country. Considering the difficulties that a complaint procedure may pose to the victims with regard to the exhaustion of domestic remedies and the burden and standard of proof required, the inquiry procedure might prove to be the best mechanism to supervise compliance by both donors and recipient states with the international obligations set forth in Article 2(1) ICESCR. The OP-ICESCR does not only enable the Committee to supervise compliance with the obligations of international assistance and cooperation included in Article 2(1) through inter-state complaints and inquiry mechanisms, it also enables the Committee to transmit to the United Nations, specialised agencies, funds and programmes, and other competent

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bodies its views or recommendations concerning communications and inquiries that indicate a need for technical assistance (Article 14(1) OP-ICESCR). The OP-ICESCR also envisages the establishment of a trust fund with a view to providing expert and technical assistance to states parties (Article 14(3) OP-ICESCR) The relevance of giving the Committee competence to supervise compliance with Article 2(1) ICESCR As the Committee has noted, development cooperation activities do not automatically contribute to the promotion of respect for economic, social and cultural rights. Many activities undertaken in the name of development have subsequently been recognised as ill-conceived and even counter-productive in human rights terms.97 The fact that the Committee will be compotent to supervise states’ compliance with Article 2(1) ICESCR will provide an important tool to evaluate the human rights impact of international assistance and cooperation programmes.

Although some states undertake evaluation of the impact of their international cooperation and assistance programmes, possible recourse to an independent international body would enhance the existing mechanisms for accountability. The supervisory mechanisms envisaged under the OP-ICESCR might prove to be useful tools to monitor that development efforts are effective, transparent and, of course, that they take due account of human rights obligations.

The Committee’s assessment would assist states to gain a better understanding of shortcomings and problems in international assistance and cooperation programmes. The Committee will be able to provide states with concrete recommendations in order to better comply with human rights obligations when implementing such programmes.

The Committee would be able to provide protection – and eventually compensation – to particular communities, groups of people and individuals whose rights may have been overlooked during the design and implementation of international assistance and cooperation programmes.

The examination of specific cases by the Committee would also encourage states to take measures to prevent and overcome failures in the design and implementation of international assistance and cooperation programmes. The possibility that an international assistance and cooperation programme could be examined by an international human rights body would encourage states (both donors and recipients) to incorporate a human rights framework in their international assistance programmes. For example, they would be more aware of the need to respect the principle of non-discrimination and the need to allow for the greatest possible participation. Similarly, they would be more willing to integrate safeguards and compensation mechanisms against unintentional harm caused during the implementation of a given project.

The possibility that the Committee might be called upon to examine an international assistance and cooperation programme may also increase transparency in the design and implementation of a programme. States would be under pressure to provide information to the affected communities, which would in turn be further empowered.

The possibility of submitting a claim alleging violations of economic, social and cultural rights caused by an international assistance or cooperation programme may also enhance the involvement of the affected individuals and communities.98 They would be encouraged to demand further information on the impact of a project that may affect them and on the ways to complain against any violation. The possibility of complaining might also be an incentive for social mobilisation: the creation of new social organisations

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and networks or the coordination between existing ones in order to further the successful chances of a claim.

Concluding comments At a time when the ODA from developed countries has dropped 5.1% for the first time since 1997, and when only five donor countries are exceeding the commitment of 0.7% of gross national income for development,99 it seems crucial to look for additional ways to reinforce the commitments made by states in the MDG 8. The obligations of international assistance and cooperation assumed by 159 states parties to the ICESCR should not be neglected.

Over the years, the Committee on Economic, Social and Cultural Rights has developed the scope and content of Article 2(1) ICESCR, defining several legally binding obligations for both developed and developing states. These obligations have a tremendous potential to further contribute to the achievement of MDG 8.

It has been widely acknowledged that human rights and the Millennium Development Goals are interdependent and mutually reinforcing;100 the previous analysis shows that this is also the case regarding the obligations of international assistance and cooperation imposed by Article 2 ICESCR and the MDG 8. Both provisions share a common ultimate aim, which is to enable states to promote well-being and respect the inherent dignity of all individuals. They both recognise that some states face greater obstacles as regards the provision of food (Art. 12 ICESCR), education (Art. 13 and 14 ICESCR), promoting gender equality and empowering of women (Art. 3 ICESCR), combating disease (Art. 13 ICESCR), and in the protection of mothers and children (Art. 10 ICESCR) and therefore require financial and technical assistance from richer states. For some states, such international assistance is a necessary condition to fully comply with both the legal obligations imposed by the Covenant and the MDGs. In addition to sharing this common ground, the obligations of international assistance under the Covenant and the MDG 8 have their own specific set of characteristics that make the obligations mutually reinforcing. MDG 8 has the advantage of being quantifiable and limited in scope. Nonetheless, it concentrates on outcomes, while the obligations of international assistance and cooperation in the Covenant should be read in conjunction with all the additional obligations included in the Covenant and therefore refer to ‘quality’ as well. As mentioned above, under the Covenant states must comply with the principles of non-discrimination, participation, transparency and accountability.

While the MDG 8 is primarily aimed at ‘developed’ states, as we have seen under Article 2(1) ICESCR there are obligations of international character for ‘developed’ as well as for ‘developing’ states.

MDG 8 includes specific targets and it is set up in a much more technical manner. These targets and benchmarks would enrich the work of the Committee on Economic, Social and Cultural Rights. The Committee does not have sufficient capacity – and sometime it has lacked the expertise – to address the obligations of international assistance and cooperation in a more pragmatic and quantified manner. It might therefore be beneficial for it to rely on the targets, benchmarks and priorities of the MDG 8.

As soon as the OP-ICESCR enters into force, the Committee on Economic, Social and Cultural Rights will be able to hold donors and recipient states to account regarding their international assistance and cooperation programmes. In this regard, the OP-ICESCR may be crucial for compliance with the MDGs, in particular MDG 8.

There is a need for the human rights movement and the development movement to work together to ensure the widest possible ratification of the OP-ICESCR and to devise

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strategies to use its mechanisms to ensure an effective and transparent implementation of international assistance and cooperation programmes and that development efforts contribute to the promotion and protection of economic, social and cultural rights.

There is a need for the human rights movement and the development movement to work together in favour of the inclusion of stronger international mechanisms to supervise compliance with the obligations of international assistance and cooperation included in Article 2(1) ICESCR.

Notes 1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

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’.

104 16.

17.

18.

19.

20.

21.

22.

23.

M. Sepu´lveda Carmona 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

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25.

26.

27.

28.

29.

30.

31.

32.

33.

34.

35.

36.

37.

38.

39.

40.

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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 Sepu´lveda, 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 Sepu´lveda, 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/BPEAEnding AfricasPovertyTrapFINAL.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 Ja¨gers, Corporate Human Rights Obligations: In Search of Accountability (Antwerp:

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41.

42.

43.

44.

45.

46.

47.

48.

49.

50.

51.

52.

53.

M. Sepu´lveda Carmona 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

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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.

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M. Sepu´lveda Carmona 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.

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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 Jose´ 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-a`-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.