Third Open-Ended Working Group to Consider Options Regarding the Elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
Geneva, 6-17 February 2006

Submission Regarding Allocation of Resources
NGO Coalition for an Optional Protocol to the ICESCR

10 February 2006

Madam Chair, we have heard this morning very informative discussion of the implications of resource allocation decisions as they relate to the relationship between governments and courts, or governments and the Committee under an Optional Protocol. We believe that we also need to consider this question of resource allocation from the standpoint of the rights holders, and what it means to them in terms of the effectiveness and inclusiveness of a complaints procedure.

As you have pointed out, Madam Chair, many complaints under the OP will not involve resource allocation, and indeed many will identify barriers to the enjoyment of ESC rights which, if removed, will save states resources. We must recogni se that denying the enjoyment of ESC rights is not a long term cost-effective strategy with respect to scarce resources. Enhancing the capacity of marginalised groups to bring to light the factors impeding their enjoyment of ESC rights, on the other hand, is beneficial for governments and will improve their ability to allocate resources in a cost effective manner.

Madam Chair, in assessing what this question means to the people we work with in our various countries, we also need to recognise that the most marginalised groups may rely on positive measures of protection from the state and the types of complaints they would bring to the Committee would reflect that. More advantaged interests, on the other hand, tend to associate the enjoyment of rights with freedom from state interference. The Constitutional Court of Columbia, the Supreme Court of Canada and many other courts have therefore recognised that any exemption or restriction of resource allocation decision from constitutional or human rights review would have a discriminatory result. It would exclude the most disadvantaged groups from the benefits of human rights protections.

The adoption of an OP to the ICESCR will represent a huge step forward in ensuring that the positive dimension of government obligations toward the most marginalised and vulnerable is fully recognised in the UN human rights system. An Optional Protocol which limited or prevented the consideration of the issues of the most disadvantaged related to resource allocation would defeat this important purpose.

It seems to us, Madam Chair, that some of the discussion this morning exaggerated the extent to which a complaints procedure would engage with macro-economic decision-making and budget allocation. While the periodic review process must inevitably consider the big picture of government expenditure, experience at the domestic and regional level shows that consideration of individual complaints actually makes the review of such decisions much more manageable. Courts and tribunals engage in such review all the time when, for example, they consider whether resources have been reasonably allocated to accommodate disabilities. As the esteemed representative from the U.K. pointed out, this standard of reasonableness has been applied by the South African Constitutional Court to ESC rights such as the right to housing and to health. A complaints procedure will, in fact, enhance the Committee’s capacity to provide meaningful guidance to states as to reasonable resource allocation toward the realisation of ESC rights, but allowing them to assess reasonable allocation in particular contexts, rather than engaging with the more difficult questions of macro-economic policy.

Madam Chair, consideration of the full range of obligations in relation to ESC rights and resource allocation, in relation to all aspects of the duties to respect, protect and fulfill, neither encourages nor requires inappropriate review of state policy choices in relation to resource allocation. Case law that is referred to in the Elements paper and many other cases throughout the world that NGOs are following with interest consistently show that courts, tribunals and regional bodies exercise appropriate restraint and respect for legislative competence when considering ESC and other rights. As you have explained, courts have largely restricted their role to measuring programs against constitutional or international human rights principles, leaving the design and implementation of programs to legislatures. An optional protocol will allow for the development of jurisprudence on how the appropriate margin of discretion and deference to policy choices can be assessed in particular circumstances.

It is widely recognised now that the adjudication of civil and political rights, as well as many other legal rules such as trade law, regularly impinges upon the allocation of resources and may have significant budgetary consequences. While it is obvious that the realisation of civil and political rights involves significant allocation of resources to ensure the rule of law and fair trial rights, the related costs are often not considered because the institutions are already in place and are not in question. We look forward to the day that the institutional mechanisms necessary to the protection of ESC rights will be considered in the same light.

Madam chair, the adjudication of human rights is never simple. Balancing the rights of accused with the rights of victims, or the rights of those vulnerable to hate speech with the right to freedom of expression, are, as we are seeing these days, complex matters. Human rights adjudication is, by its very nature, complicated by these types of competing concerns. In many cases, courts or human rights institutions may be better placed than legislatures to consider evidence as to the effect of policies or programs on vulnerable groups that were not properly considered in the legislative process. It is by developing and demonstrating competence in considering these types of issues, and exercising appropriate institutional restraint, that courts and other human rights institutions are able to enhance democratic governance.

NGOs around the world are rallying around the idea of an OP not as a way of circumventing democratic accountability, but rather, as a way of enhancing it. Where courts and other human rights institutions consider social and economic rights related to resource allocation, they are doing so to ensure that the fundamental rights of vulnerable or marginalised groups are not neglected, thereby ensuring respect for their equal dignity and citizenship.

Thank you Madam Chair.

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