----- Original Message ----- From: "tonizingaro" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Monday, February 14, 2005 6:56 PM Subject: Re: RMSF - appello- la tua firma per i Diritti Sociali, Economici e Culturali - con preghiera di inoltro
> Antun Blazevic > via delle Ceramiche 9 > 00167 Roma > Associazione Culturale Rom > DROMOMANIA > ----- Original Message ----- > From: <[EMAIL PROTECTED]> > To: <[EMAIL PROTECTED]>; <[EMAIL PROTECTED]>; > <[EMAIL PROTECTED]> > Cc: <[EMAIL PROTECTED]> > Sent: Friday, February 13, 2004 7:19 PM > Subject: RMSF - appello- la tua firma per i Diritti Sociali, Economici e > Culturali - con preghiera di inoltro > > > Cari amici, > > Ecco in inglese una dichiarazione scritta da una coalizione internazionale > per ottenere un Protocollo Opzionale al Patto Internazionale per i Diritti > Economici, Sociali e Culturali. > > La cosa � seria per tutti quelli che tra noi credono che questi Diritti > non siano abbastanza rispettati. se volete aderire, basta inoltrare questa > mail a [EMAIL PROTECTED] specificando il vostro: > > -nome > -associazione > -indirizzo > > Se volete, potete inoltrare la risposta anche al mio indirizzo > ([EMAIL PROTECTED] > ) che vi terr� informati in italiano sugli sviluppi di questa campagna > Internazionale > di vitale importanza, e su tutte le approcciabili scadenze. > > Naturalmente servono energie e risorse di cui non disponiamo a sufficienza, > ed ogni vostro slancio potrebbe essere quello che ci servir� per produrre > eventi, dati, contatti, pressioni sul nostro governo e sulle istituzioni > internazionali, e per seguire la trattativa in corso alle Nazioni Unite. > > buon lavoro, > > Manfred Bergmann > > Casa dei Diritti Sociali (House of Social Rights), membro del Comitato > Italiano > per la Promozione e Protezione dei Diritti Umani > > Via dei Mille 6 > Roma 00185 > Italy > tel . (0039) 064464613 - cell 3474735067 > [EMAIL PROTECTED] > www.dirittisociali.org > www.december18.net > Joint Sign-On Statement > > Send endorsements to [EMAIL PROTECTED] > > > > JOINT SUBMISSION BY NON-GOVERNMENTAL ORGANISATIONS, HUMAN RIGHTS > INSTITUTIONS > AND CIVIL SOCIETY GROUPS PERTAINING TO THE DELIBERATIONS OF THE COMMISSION > ON HUMAN RIGHTS, INTER-SESSIONAL WORKING GROUP ESTABLISHED TO CONSIDER > OPTIONS > REGARDING THE ELABORATION OF AN OPTIONAL PROTOCOL TO THE INTERNATIONAL > COVENANT > ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS > > > February 2004 > > > > > > I. INTRODUCTION > > > > > > The fifty-ninth session of the Commission on Human Rights established an > inter-sessional open-ended working group mandated to consider options > regarding > the elaboration of an Optional Protocol to the International Covenant on > Economic, Social and Cultural Rights, (hereinafter ICESCR or the Covenant). > Motivated by a widespread concern for the protection and promotion of > economic, > social and cultural rights, the undersigned, in representation of > non-governmental > organisations, human rights institutions and civil society, submit the > following > views concerning the deliberations of the working group that will meet for > its inaugural session in February 2004. > > > > > > II. CONTEXT > > > > > > Guided by principles enshrined in the United Nations Universal Declaration > of Human Rights, it is clear that undivided State party adherence to the > Covenant is of considerable importance in protecting and promoting economic, > social and cultural rights. It is recognised that, through their > ratification > of the Covenant, States parties bear responsibility to ensure that economic, > social and cultural rights are protected and promoted. The ensuing need > to assist in the realisation of these rights, through the provision of a > comprehensive international remedial mechanism to intervene during and/or > adjudicate over ICESCR rights violations, is thus of paramount importance. > > > > > > III. MINIMUM CORE CONTENT OF AN OPTIONAL PROTOCOL TO THE ICESCR > > > > > > The undersigned non-governmental organisations, human rights institutions > and civil society representatives assert that the following minimum core > elements are essential for an Optional Protocol to the ICESCR to fulfil > its potential as an effective mechanism through which economic, social and > cultural rights may be protected and promoted: > > > > (a) Comprehensive Scope > > > > Gathering together representatives from over 170 States, the 1993 Vienna > World Conference on Human Rights was unequivocal in confirming the > universality, > interdependence, indivisibility and interrelatedness of civil, cultural, > economic, political and social rights. Given that the first Optional > Protocol > to the International Covenant on Civil and Political Rights, (hereinafter > ICCPR), relates in a comprehensive manner to all of the rights embodied > in that Covenant, not to adopt a similar approach in drafting an Optional > Protocol to the ICESCR would be to directly challenge the universality, > interdependence, indivisibility and interrelatedness of all human rights.[1] > For this reason, an Optional Protocol to the ICESCR should clearly address > all of the rights and State obligations enshrined in the Covenant. > > > > (b) State Obligations to Respect, Protect and Fulfil Covenant Rights > > > > As with the first Optional Protocol to the ICCPR, an Optional Protocol to > the ICESCR should address both negative and positive State obligations > associated > with the realisation of Covenant rights. In particular, an Optional > Protocol > to the ICESCR should entertain complaints and empower an inquiry procedure > where States parties violate their obligations to respect, protect and > fulfil-facilitate/fulfil-provide > Covenant rights. > > > > The obligation to respect requires States parties to refrain from > interfering > with the enjoyment of Covenant enshrined economic, social and cultural > rights. > This is a negative obligation that mandates States parties to act in a > way that does not violate economic, social and cultural rights and/or > infringe > on an individual?s freedom to access these rights. Within this context, > States parties must ?respect the freedom of the individuals to take the > necessary actions and use the necessary resources ? alone or in association > with others.?[2] > > > > The obligation to protect requires States parties to prevent ICESCR rights > abuses by third parties. In this, States parties must take ?measures > necessary > to prevent other individuals or groups from violating the integrity, freedom > of action, or other human rights of the individual ? including the > infringement > of his material resources.?[3] > > The obligation to fulfil encompasses State party obligations to facilitate > access to and/or provide for the full realisation of economic, social and > cultural rights. This is a positive obligation. The obligation to > facilitate > requires States parties to pro-actively engage in activities that strengthen > access to and the utilisation of resources and means to ensure the > realisation > of Covenant rights. The obligation to provide requires States to take > measures necessary to ensure that each person within its jurisdiction may > obtain basic economic, social and cultural rights satisfaction whenever > they, for reasons beyond their control, are unable to realise these rights > through the means at their disposal.[4] > > > > State obligations under the Optional Protocol to the ICESCR must encompass > both negative and positive obligations, thereby reinforcing the universality > interrelatedness and indivisibility of all human rights. Such an approach > would also serve as a reminder to the international community, through the > ICESCR/Optional Protocol working group, of the importance it attaches to > economic, social and cultural rights issues and seriousness with which it > now responds to violations. > > > > (c) An Optional Protocol Complaint's and Inquiry Procedure > > > > Conceptualised as a complaint's mechanism and an inquiry procedure, an > Optional > Protocol to the ICESCR would possess the potential to significantly > contribute > towards the realisation of Covenant enshrined economic, social and cultural > rights. > > > > An Optional Protocol complaint's mechanism would provide individuals and > groups with access to an international adjudicative procedure. Under this > procedure, individuals and/or groups could communicate directly with the > United Nations Committee on Economic, Social and Cultural Rights, (?the > Committee?), to seek and obtain remedies for specific violations of rights > contained in the Covenant. > > > > An Optional Protocol?s inquiry procedure would empower the Committee to > initiate an investigation into particularly grave or systematic abuses of > Covenant rights. An inquiry procedure would reinforce an Optional > Protocol?s > complaints procedure as it would: (i) Open an avenue to address situations > where individual/group communications could not adequately reflect the > gravity > or the systemic nature of violations of Covenant provisions; (ii) Allow > grave and/or systematic Covenant violations to be investigated where > individuals > or groups were unable to utilise the complaint's mechanism for reasons > including > fear of reprisals; and (iii) Enable a more-timely response to grave and/or > systematic violations of the provisions of the Covenant, and to continuing > violations in particular.[5] > > > > (d) Standing to Lodge an Optional Protocol Complaint > > > > At a minimum, parties who possess the ability to initiate a complaint, > (standing), > under an Optional Protocol to the ICESCR, should include: > > > > (i) Individuals and group of individuals[6] who have been victims > of violations of Covenant rights by State parties; > > > > (ii) Representatives of individuals or groups of individuals > empowered to initiate complaints on behalf of individual and collective > victims. > > > > The importance of expressly acknowledging the competence of representatives, > particularly non-governmental organizations and national human rights > institutions > to launch complaints on behalf of individual and groups victims of ICESCR > violations cannot be underestimated. Under existing instruments, complaints > on behalf of individual and group victims have either been specifically > included[7] or such representative standing has been provided through > adjudicative > interpretation.[8] The significance of allocating standing to such > representatives > is rooted in the fact that these types of communications play an essential > role in initiating international complaint's procedures, particularly where > victims face the risk of ill-treatment or other retaliation for directly > engaging in the process.[9] > > > > > > (e) State Party Reservations Under an Optional Protocol > > > > Precluding reservations to the Optional Protocol[10] to the ICESCR would > represent a significant commitment by States parties which ratify the > Protocol, > to uphold the integrity of internationally recognised economic, social and > cultural rights. Excluding the use of reservations would be appropriate > as: > > > > (i) The raison d?etre of an Optional Protocol would be to assist > people in realising their economic, social and cultural rights as enshrined > in the ICESCR. As a tool to both complement and strengthen the Covenant, > to allow State party reservations to an Optional Protocol would be to > undermine > its potential as a tool for the full realisation of economic, social and > cultural rights; > > > > (ii) An Optional Protocol would by its very nature be optional and > as such, reservations that curtailed its applicability would be unnecessary; > > > > (iii) An Optional Protocol would be a procedural instrument as it > would neither introduce new nor expand present economic, social and cultural > rights obligations that States parties accepted through their ratification > of the Covenant. An Optional Protocol would thus merely serve as a means > through which States parties would be encouraged to realise existing ICESCR > obligations. > > > > (iv) An effective Optional Protocol must recognise the indivisible > and interdependent relationship amongst all Covenant rights. To allow > States > parties to individually select the ICESCR rights subject to an Optional > Protocol strike at the core this relationship and the instruments ability > to protect and promote Covenant rights. Such a selective approach would > open the door to arguments as to the hierarchy of and inequality between > economic, social and cultural rights, thereby encroaching upon the > universality, > interdependence, indivisibility and interrelatedness of all human > rights.[11] > Further, permitting the selection of economic, social and cultural rights > subject to the Optional Protocol mechanisms would risk that some States > parties would enhance their international prestige, through ratification, > while restricting the instrument?s substantive application; > > > > (v) State party concerns that might prompt reservations with regard > to specific aspects of an Optional Protocol procedure could be accommodated > through the provisions of the instrument itself. > > > > IV. THE DRAFTING OF AN OPTIONAL PROTOCOL TO THE ICESCR: AVAILABLE > RESOURCES > > > > In considering options regarding the elaboration of an Optional Protocol > to the ICESCR, the undersigned urge the open-ended working group to > recommend > the drafting of an Optional Protocol text to the 60th session of the > Commission > on Human Rights as conceptual issues related to this procedure have received > a thorough analysis from a wide variety of sources that include: > > > > (i) The abundant experience and jurisprudence of national, regional > and international bodies/instruments that employ adjudicative/inquiry > procedures > related to violations of economic, social and cultural rights. Reference > may be made to the United Nations Human Rights Committee, the European Court > of Human Rights, the European Committee on Social Rights, the African > Charter > on Human and Peoples' Rights, the San Salvador Protocol, (Inter-American > Commission jurisprudence and country reports), the Optional Protocol to > the Covenant on the Elimination of Discrimination against Women, the United > Nations Educational, Scientific and Cultural Organization Complaint's > Procedure, > the International Labour Organisation Committee on the Freedom of > Association > and an abundance of national jurisprudence; > > > > (ii) A plethora of national and international and civil society > conferences > and instruments that have clarified the nature and scope of economic, social > and cultural rights and States parties obligations under the ICESCR. > Amongst > these, the Declaration of Delhi (1959), the Law of Lagos (1961), the Limburg > Principles on the Implementation of the ICESCR (1986), the World Conference > on Human Rights (1993), the World Summit for Social Development (1995), > the Bangalore Plan of Action (1995), the Maastricht Guidelines on the > Violation > of Economic, Social and Cultural Rights (1996) and United > Nations/International > Commission of Jurists' conferences on the Optional Protocol and economic, > social and cultural rights, (1999, 2000, 2001, 2002 and 2003), amongst > numerous > others, may be instructive; > > > > (iii) General Comments from the Committee that have clarified the > nature and scope of States parties Covenant obligations and ICESCR rights > including: international technical assistance measures; the nature of States > parties obligations under article 2; the right to adequate housing; the > economic, social and cultural rights of persons with disabilities and of > older persons; the right to adequate housing, (forced evictions); the > relationship > between economic sanctions and respect for economic, social and cultural > rights; the domestic application of the Covenant; the role of national human > rights institutions in the protection of economic, social and cultural > rights; > plans of action for primary education; the right to adequate food; the right > to education; the right to the highest attainable standard of health; and > the right to water; > > > > (iv) Committee discussions, summary records, studies and reports > that have provided further clarification concerning the nature and scope > of economic, social and cultural rights as they relate to an Optional > Protocol > to the ICESCR and in particular its work on a draft Optional Protocol and > related issues, (E/C.12/1996/SR.44-49 and 54), (E/C.12/1996/CRP.2/Add.1), > (E/C.12/1994/12), (E/CN.4/1997/105), (E/1993/22), and (E/C.12/1992/WP.9), > > > > (v) The draft Optional Protocol to the ICESCR prepared by the > Committee > for consideration by the United Nations Commission on Human Rights, > (E/CN.4/1997/105); > and > > > > (vi) Other sources that have further clarified conceptual issues > related > to an Optional Protocol to the ICESCR including: the experience of numerous > United Nations Special Rapporteurs engaged in various aspects of economic, > social and cultural rights;[12] the experience of the United Nations working > group under which the Optional Protocol to the Convention on the Elimination > of all Forms of Discrimination against Women was created; two reports from > the independent expert appointed by the Commission on Human Rights, > (resolution > 2001/30), to examine the question of a draft Optional Protocol to the > ICESCR; > and the vast amount of doctrine concerning an Optional Protocol and > economic, > social and cultural rights issues.[13] > > > > Given that conceptual issues related to an Optional Protocol to the ICESCR > have received a thorough analysis from a wide variety of sources, the > open-ended > working group should utilise the above listed wealth of resources as a > primary > basis point from which the text of an Optional Protocol to the ICESCR may > be drafted. > > > > (V) THE DRAFTING OF AN OPTIONAL PROTOCOL TO THE ICESCR: TIMING > CONSIDERATIONS > > In conducting its deliberations, the ICESCR/Optional Protocol working group > should bear in mind the Commission on Human Rights decision of 26 April > 2000, (E/CN.4/2000/112), which endorsed that working group, > > > > (m)andates should always offer a clear prospect of an increased level of > human rights protection and promotion, (and that), (i)n creating any > standard-setting > working group, the Commission should consider a specific time-frame within > which the group would be called upon to complete its task. ...(i)n most > instances, the established time-frame should not in principle exceed five > years. > > > > Learning from the experiences of other processes that have led to the > establishment > of other Optional Protocols, the ICESCR/Optional Protocol working group > should adopt a pragmatic yet determined approach towards the completion > of its mandate. > > > > > the Undersigned > Manfred Bergmann > > on behalf of : > > > > > > > -------------------------------------------------------------------------- -- > ---- > > [1] Arambulo, K., Strengthening the Supervision of the International > Covenant > on Economic, Social and Cultural Rights, Theoretical and Procedural Aspects, > Intersentia, Antwerpen: 1999 at 235. See also van Hoof, F., "Discussion > on the Draft Optional Protocols" in van Hoof, F. and Coomans, F., eds., > The Right to Complain About Economic, Social and Cultural Rights, > Netherlands > Institute of Human Rights, Utrecht: 1995 at 212. See also See United > Nations > reference document E/C.12/1992/WP.9, paragraph 37. Following a > comprehensive > approach in drafting an Optional Protocol to the ICESCR would not preclude > the institution of procedural safeguards that would ensure that the > instrument > is not abused. By way of example, while a comprehensive approach was > utilised > in drafting the first Optional Protocol to the ICCPR, in interpreting > Article > 1 of this Covenant, the United Nations Human Rights Committee instituted > procedural safeguards so as to prevent the right to self-determination from > being the subject of communications. See Ominayak v. Canada, > Communication > No. 167/1984, Official Records of the General Assembly, forty-fifth > session, > Supplement No. 40 (A/45/40), vol. II, annex IX, section A at 1-30. > > [2] Asbj�rn Eide, "Realisation of Social and Economic Rights. The Minimum > Threshold Approach", International Commission of Jurists The Review 1989, > Issue 43, 40, 1989, p. 43. See also Maastricht Guidelines on Violations > of Economic Social and Cultural Rights, January 1997, para. 6. > > [3] Ibid., (Eide) at 42. > > [4] The Maastricht Guidelines on Violations of Economic, Social and Cultural > Rights, para. 6. See also Committee on Economic, Social and Cultural > Rights, > General Comment 12, United Nations document reference, E/C.12/1999/5, para. > 15. > > [5] Inter-American Institute of Human Rights, Optional Protocol, Convention > on the Elimination of all Forms of Discrimination against Women, Costa Rica: > 2000 at 71-72. An Optional Protocol to the ICESCR inquiry procedure could > be modelled after either Article 20 of the Convention Against Torture and > Other Cruel, Inhuman or Degrading Treatment or Punishment or Article 8 of > the Optional Protocol to the Convention on the Elimination of all Forms > of Discrimination against Women, both of which authorise inquiry procedures > in prescribed situations. > > [6] Nowak, M., "The Need for an Optional Protocol to the International > Covenant > on Economic, Social and Cultural Rights" in International Commission of > Jurists, The Review: Economic, Social and Cultural Rights and the Role of > Lawyers, France: 1995 at 160. Limiting standing/ability to initiate > complaints > under an Optional Protocol to the ICESCR to individuals would be to prevent > to deprive all groups and legal entities including trade unions, educative > associations, social groups and cultural minorities from the benefits > associated > with this instrument. > > [7] Providing standing to individuals and organisations to initiate > complaints > on behalf of individual and group victims of State party ICESCR rights > violations > follows the precedents of Article 2 of the Optional Protocol to the > Convention > on the Elimination of all Forms of Discrimination against Women which states > ?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?, Article 22 of the Convention > Against Torture and Other Cruel, Inhuman or Degrading Treatment or > Punishment > and Article 77 of the International Convention on the Protection of the > Rights of All Migrant Workers and Members of their Families. > > [8] Supra (Arambulo), note 1 at 223, 233-4. Through the practice of the > United Nations Human Rights Committee, communications submitted on behalf > of victims of State party ICCPR violations have been accepted. > > [9] Supra note 3 at 43. See also supra note 4 at 161. > > [10] Article 17 of the Optional Protocol to the Convention on the > Elimination > of all Forms of Discrimination against Women explicitly states ?No > reservations > to this Protocol may be permitted? > > [11] The United Nations Division for the Advancement of Women Department > of Economic and Social Affairs, The Convention on the Elimination of All > Forms of Discrimination Against Women, The Optional Protocol: Text and > Materials, > United Nations: 2000, at 49-50. See also supra, note 3 at 98-99. See > also supra note 1 at 236. > > [12] For example, housing, education, food and development. > > [13] See the work of P. Alston, K. Arambulo, M. Craven, A. Eide, D. > Harris, P. Hunt, S. Liebenberg, B. Porter, E. Riedel, M. Scheinin > and F. van Hoof, to name but a few. > > > > > > > > ---------------------------------------ISTRUZIONI PER L'USO DELLA MAILING > LIST DEL > Roman Migrant Social Forum (RMSF, 170 tra associazioni e individui iscritti > al 19/agosto/2003) > > -iscriviti a questa Mailing List con una lettera in bianco a / To subscribe > this group, send a blank email to: > [EMAIL PROTECTED] > > -per sottrarsi da questa lista spedisci una lettera in bianco a / To > unsubscribe from this group, send a blank email to: > [EMAIL PROTECTED] > > per consultare i messaggi e la documentazione legale e statistica archiviata > sviluppa il tuo yahoo!profile ed esplora il sito della mailing list del > Roman Migrant Social Forum http://groups.yahoo.com/group/romamigrantforum > ------------ > --- --- --- --- --- > sostieni anche tu la Giornata Internazionale dei Lavoratori Migranti ! > www.december18.net > Yahoo! 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