of including the inquiry procedure rather than proposals regarding its features.23
At its 2007 session, the Working Group had before it the first draft of the Optional Protocol produced by the Chairperson, which contained an inquiry procedure mirroring that of the OP-CEDAW, with the addition of a paragraph on the publication of inquiry reports tracking CAT Article 20(5).24 In her explanatory memorandum accompanying the draft, the Chairperson noted that she had relied on agreed language from the OP-CEDAW, OP-CRPD, and CAT Article 20 in light of disagreement in the Working Group about the inclusion of an inquiry procedure and the absence of suggestions from delegations about its specific features.25 Delegations accepted the Chairperson’s draft text of the inquiry procedure as the basis for discussion. The ensuing debate again focused primarily on whether an inquiry procedure should be incorporated in the Optional Protocol. This pattern continued throughout the remainder of the drafting process: discussions centred mainly on the desirability of a procedure largely identical to the OP-CEDAW procedure and did not explore any significant innovations to the functions of the procedure or its scope of application.26
Over the course of the debates, a relatively small number of delegations stated their clear opposition to the inclusion of the procedure.27 A comparable number of States voiced clear support for the procedure,28 but many States took no firm position on the matter.29 The
23 See Optional Protocol to the International Covenant on Economic, Social and Cultural Rights Prepared by the Chairperson-Rapporteur, U.N. Doc. A/HRC/6/
WG.4/2, Annex II, Explanatory Memorandum, 23 April 2007, para. 33.
24 Ibid draft Articles 10-11, 20.
25 Ibid Annex II, Explanatory Memorandum, para. 33.
26 For example, the Working Group could have limited the application of the inquiry procedure to specific rights or created a different threshold for application. Denmark proposed that the scope of application be limited to ‘cases of non-discrimination or other fundamental and well-defined principles’, but the Working Group did not act on this suggestion. Report of the Open-ended Working Group on an optional protocol to the International Covenant on Economic, Social and Cultural Rights on its fourth session, U.N.
Doc. A/HRC/6/8, 30 August 2007, para. 112.
27 States expressing opposition to, or significant reservations about, the inclusion of the inquiry procedure included Egypt, Nigeria, Angola (Report of the Open-ended Working Group to consider options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights on its third session, U.N. Doc. E/CN.4/
2006/47, 14 March 2006, para. 73); Australia, China, India, Italy, Poland, Russia and the United States (Report of the Open-ended Working Group on an optional protocol to the ICESCR on its fourth session (n. 26 above), paras. 112, 187).
28 Report of the Open-ended Working Group on an optional protocol to the ICESCR on its fourth session, (n. 26 above), para. 111 (Austria, Brazil, Chile, Costa Rica, Ecuador, Finland, Liechtenstein, Portugal, Senegal, South Africa and Sweden).
29 See, e.g., Optional Protocol to the International Covenant on Economic, Social and Cultural Rights Prepared by the Chairperson-Rapporteur (n. 23 above), para. 32 and nn. w-y (identifying Azerbaijan, Finland, Mexico and Portugal as supporters of the inclusion of the procedure; Egypt, Nigeria, and Angola as opponents of its inclusion;
and Argentina, Brazil, Belgium, Chile, France, Italy, Spain, and the United Kingdom as undecided on the matter).
bases for opposition cited by delegates related principally to the scope of the CESCR’s authority and discretion, including concerns about: the sources of information that could be considered by the CESCR; the possibility that in the absence of identified victims, the CESCR could consider anonymous information; the basis on which the reliability of information would be assessed; the meaning of the terms used to describe the threshold of application; and the necessity for the State Party’s consent at all stages of the proceedings.30 Other delegations raised questions about the ‘potentially large scope of investigations’ under an inquiry procedure and the absence of a requirement to identify victims, without opposing the inclusion of the procedure.31 The potential overlap of an inquiry procedure with the work of the UN special mechanisms was mentioned by several delegations as a factor weighing against its inclusion and concerns related to the costs associated with inquiries were raised by some delegations.32
From the outset of negotiations, the inquiry was framed as an optional procedure and its optional character was a central factor shaping the debate. The first draft of the Protocol produced by the Chairperson incorporated an opt-out provision drawn from OP-CEDAW Article 10.33 Although a few States took the position that the procedure should be compulsory upon ratification of the optional protocol, there was little support for this approach.34 Several delegations expressly conditioned their openness to the inclusion of the procedure on its optional character.35 The draft opt-out provision was retained until the final session of the Working Group,36 when the Russian Federation proposed that the inquiry be made an opt-in procedure. The Russian Federation argued that the approach to the inquiry procedure should be consistent with the opt-in approach taken to the inter-State procedure established in Article 10.37
30 Report of the Open-ended Working Group to consider options regarding the elaboration of an optional protocol to the ICESCR on its third session (n. 27 above), para. 73 (Egypt, Nigeria and Angola).
31 Ibid para. 71 (Belgium, France, Italy and the United Kingdom).
32 Report of the Open-ended Working Group on an optional protocol to the ICESCR on its fourth session (n. 26 above), para. 113 (Australia, Ethiopia, Italy, Poland and the United States); Report of the Open-ended Working Group to consider options regarding the elaboration of an optional protocol to the ICESCR on its third session (n. 27 above), para. 71 (Belgium, France, Italy and the United Kingdom).
33 See Optional Protocol to the International Covenant on Economic, Social and Cultural Rights Prepared by the Chairperson-Rapporteur, U.N. Doc. A/HRC/6/WG.4/2, Annex I, 23 April 2007, Article 20.
34 Report of the Open-ended Working Group on an optional protocol to the International Covenant on Economic, Social and Cultural Rights on its fifth session, U.N. Doc. A/HRC/8/7, 23 May 2008, para. 101.
35 Ibid.
36 Revised Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights prepared by the Chairperson-Rapporteur, U.N. Doc. A/HRC/8/WG.4/2, Annex I (first revised draft), 24 December 2007, Article 11bis (previously Article 20), and Annex II, Explanatory Memorandum, para. 43; Revised Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Letter from the Chairperson-Rapporteur, U.N. Doc. A/HRC/8/WG.4/3 (second revised draft), 25 March 2008, Article 11bis.
37 U.N. Doc. A/HRC/8/7 (n. 34 above), para. 179.
This proposal was accepted and the draft adopted by the Working Group inserted an opt-in provision into Article 11.38 Although the suggestion that there were legal grounds for requiring an opt-in approach to both procedures was clearly spurious, the shift to an opt-in approach secured the inclusion of the procedure and no other significant changes to the draft text were made.39 Several procedural aspects of the inquiry procedure were the subject of limited discussion in the Working Group, including whether there was a need to include a provision on follow-up and whether to establish a six-month time frame for the State Party’s response. These questions were all resolved in favour of a text following the OP-CEDAW model.40
In addition to the conversion of the inquiry to an opt-in procedure and the use of previously agreed language, the high threshold for application of the procedure undoubtedly contributed to its acceptance. Although a number of States raised general questions and concerns about the meaning of the terms ‘grave’ and ‘systematic’,41 it was evident that this language would impose significant restrictions on the types of violations the CESCR could investigate.42 The fact that these terms had been previously agreed in the OP-CEDAW inquiry procedure allowed delegations to bypass substantive discussion of their meaning. The fact that in ten years only one inquiry had been conducted under the OP-CEDAW may have suggested to States that they might well be able to avoid scrutiny under the Article 11 procedure even if they opted into it.
The travaux préparatoires trace the path of political compromise leading to the acceptance of the procedure but provide little information about the drafters’ interpretation of key elements of the text of Article 11.
38 Ibid Annex I, p. 38.
39 Following the adoption of the draft text by the Working Group in 2008, Egypt, on behalf of the African Group, ‘expressed its overall satisfaction with the text, welcomed the inclusion of ... the provisions on ... [inter alia, the] inquiry procedure ...’ Ibid, para.
40 220.See ibid, para. 98 (regarding the six-month time frame) and para. 100 (regarding the inclusion of a provision on follow-up measures); Report of the Open-ended Working Group on an optional protocol to the ICESCR on its fourth session (n. 26 above), para. 118 (regarding the six-month time frame).
41 Report of the Open-ended Working Group to consider options regarding the elaboration of an optional protocol to the ICESCR on its third session (n. 27 above), para. 72 (Argentina, Brazil, Chile and Spain); Report of the Open-ended Working Group on an optional protocol to the ICESCR on its fourth session (n. 26 above), para. 114 (Burkina Faso, China, Egypt (on behalf of the African Group), Ethiopia, Nigeria and the United States.) The Chairperson’s 2006 analytical paper described an inquiry procedure as applying to violations of a grave or systematic nature. U.N. Doc. E/CN.4/2006/WG.23/2 (n. 22 above), para. 27. This threshold was accepted as the basis for subsequent discussions.
42 See Report of the Open-ended Working Group on an optional protocol to the ICESCR on its fifth session (n. 34 above), para. 97 (indicating that Ecuador preferred the deletion of the terms ‘grave or systematic’, while Argentina, Austria, Brazil, Greece, the Netherlands, New Zealand, Sweden and the United States requested their retention).
Delegations made no clear statements about the meanings they sought to attach to the terms ‘grave’, ‘systematic’, or ‘reliable’.43 When questions were raised about the meaning of the term ‘reliable’ during the third session of the Working Group, the representative of the CESCR, acting as a resource person, responded that the reliability of information received in connection with the Article 11 procedure could be evaluated by the CESCR in the same manner as information received under the periodic reporting procedure.44 On the question of the publication of inquiry reports, one delegation specifically stipulated that States should be able to provide comments on the report before it was made public, but the opportunity for comments by the State Party concerned was in any event contemplated by the draft provision reproducing CAT Article 20(5).45
The travaux préparatoires confirm that the drafters recognised the breadth of the investigative competence conferred on the CESCR under Article 11.46 The majority of the objections to the inclusion of an inquiry procedure concerned features that contribute to the wide scope of the CESCR’s investigative authority. The drafters understood that the decision to initiate an inquiry rests with the CESCR and that it can launch an inquiry without State cooperation.47 During the debates, delegations took note of several features of the procedure that broaden its scope and enhance its accessibility to victims, including the absence of a victim requirement and the lack of restrictions on the sources of information and the form in which it is provided.48 There can be no doubt that the drafters accepted that the CESCR would have the authority to initiate an inquiry
43 Comments of a more specific nature were made by: the delegation of Brazil, Report of the Open-ended Working Group on an optional protocol to the ICESCR on its fourth session (n.
26 above), para. 17 (stressing ‘the need to clarify the actions or omissions that would lead to an inquiry’); ibid, para. 115 (pointing to the ‘need for clear human rights indicators to identify situations of grave and systematic violations’); and the delegations of Chile and the United Kingdom, ibid, para. 116 (asserting that ‘an absence of resources would not justify grave violations’).
44 Report of the Open-ended Working Group to consider options regarding the elaboration of an optional protocol to the ICESCR on its third session (n. 27 above), para. 75.
45 Report of the Open-ended Working Group on an optional protocol to the ICESCR on its fifth session (n. 34 above), para. 99 (Australia).
46 See, e.g., Report of the Open-ended Working Group to consider options regarding the elaboration of an optional protocol to the ICESCR on its third session (n. 27 above), para. 71.
47 See, e.g., Report of the Open-ended Working Group on an optional protocol to the ICESCR on its fifth session (n. 34 above), para. 102 (expression of concern by the Russian Federation
‘at the power given to the Committee to launch an inquiry’). The Chairperson’s 2006 analytical paper cited features distinguishing an inquiry from a complaints procedure, including the fact that ‘in the inquiry procedure the Committee does not have to receive a formal complaint and it is up to the Committee to decide to initiate the procedure …’ (emphasis added); U.N. Doc. E/CN.4/2006/WG.23/2 (n. 22 above), para. 27. The information on the CAT Article 22 and OP-CEDAW inquiry procedures presented to the Working Group by the Secretariat similarly made clear that these procedures are initiated at the discretion of the treaty body and the consent of the State Party concerned is not required. See U.N. Doc. E/CN.6/1997/4, 21 Jan. 1997 (n. 21 above), paras. 101-103;
U.N. Doc. E/CN.4/2005/WG.23/2 (n. 21 above), paras. 51-56.
48 See Report of the Open-ended Working Group to consider options regarding the elaboration of an optional protocol to the ICESCR on its third session (n. 27 above), paras. 71 and 73. The absence of a victim requirement was highlighted in the Chairperson’s 2006 analytical
without the State Party’s cooperation and would have wide latitude to determine its working methods and the interpretation of the threshold requirement.