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Third Committee recommends General Assembly adoption of Optional Protocol to International Convention on Economic, Social and Cultural Rights

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GA/SHC/3938

Sixty-third General Assembly
Third Committee
40th & 41st Meetings (AM & PM)

Other Texts Address Torture, Self-Determination, Practices Fuelling Racism; Also Rejects by Recorded Vote Seven Amendments to Death Penalty Moratorium Draft

In what some called a great step towards the full realization of human rights, delegates to the Third Committee (Social, Humanitarian and Cultural) approved a draft resolution by consensus today that would have the General Assembly adopt a new Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, which would establish a communications procedure for alleged violations of rights under the Covenant.

Also today, the Committee began its consideration of a draft resolution on a moratorium on the use of the death penalty, rejecting seven proposed amendments to the text. It also approved three other draft resolutions, by consensus, on questions relating to refugees, the right to self-determination and on torture and other cruel, inhuman or degrading treatment. A draft resolution on the inadmissibility of certain practices that contribute to fuelling contemporary forms of racism, racial discrimination, xenophobia and related intolerance was also approved, by a recorded vote of 122 in favour, 1 against (United States), and 54 abstentions (Annex I).

The new Optional Protocol to the International Covenant on Economic, Social and Cultural Rights was the result of five years of intensive work, followed by intensive consultations, according to Portugal's representative, the main sponsor of the draft resolution on the issue. Its adoption would be significant in that it would reset the balance between economic, social and cultural rights and civil and political rights, which already has a similar individual complaint mechanism in place. The text before the Committee was a good compromise, based on years of negotiations. While he understood that some States were not in a position to become party to the instrument at the current time, he expressed hope that no obstacles would be put in place for those that wished to have such a mechanism.

Many delegates, speaking before and after action on the draft, said they did not want to be that obstacle, or stand in the way of such a mechanism. However, a number of representatives expressed concerns over whether economic, social and cultural rights were sufficiently suited to an individual complaints mechanism and if they could be held to account in the same way as civil and political rights. As the representative of Poland put it, "International judicial and quasi-judicial procedures are not well suited for the enforcement of many social rights. They invite rulings based on political preferences of the judges, rather than on strict law."

Denmark's delegate, taking it one step further, suggested that the "vague and broad nature" of those rights might, down the road, constitute a risk that the Committee on Economic, Social and Cultural Rights would end up functioning as a legislator, determining the allocation of State resources within that sphere. Other delegates raised similar concerns, while a number of others drew attention to the right to self-determination and whether, as a collective right, it should be addressed within the draft optional protocol's individual complaints mechanism. Despite the differing opinions on the draft, delegates, in a spirit of consensus, chose to approve it without a vote.

Such consensus proved difficult to achieve as the Committee began its deliberations on a text on a moratorium on the use of the death penalty. The representative of Chile, the main sponsor of the draft, said that the text of the resolution had been drafted to promote constructive dialogue and to minimize confrontation. The substance of the text focused on the moratorium, reaffirming last year's General Assembly resolution 62/149, and paying heed to the global trend towards the elimination of the death penalty. It also welcomed the Secretary-General's report on the subject and would have the Assembly take up the subject again in two years.

However, the representative of Singapore, expressing a view held by many delegates, said that the draft still sought to pass judgement on the issue and on countries that chose to retain the death penalty. For instance, it would seek to reaffirm last year's extremely divisive and contentious resolution -- whereas the word "reaffirm" was usually used sparingly, and then only for consensus resolutions. As such, Singapore joined delegates from Egypt, Barbados, and Botswana in introducing seven amendments to the draft, including one which called for the word "reaffirming" to be changed to "recalling". That draft amendment was rejected by a recorded vote of 87 against to 60 in favour, with 22 abstentions (Annex III).

Six other draft amendments -- which, among other things, reaffirmed the sovereign right of States to determine legal measures and penalties, recalled the stipulation in the United Nations Charter that nothing in the Charter would authorize the United Nations to intervene in matters within a State's domestic jurisdiction, and requested that the issue be considered again in three years time, instead of two -- were also rejected, all by recorded votes (see Annexes II to VIII).

As the Committee approved the draft resolution on the inadmissibility of certain practices that contribute to fuelling contemporary forms of racism, the main sponsor of that text, the Russian Federation, said the draft's co-sponsors had been deeply concerned about the rise of extremist groups, such as neo-Nazis and skinheads, who carried out acts of violence against minority groups, immigrants and others. The representative of the United States said his delegation had voted against the draft's approval because the draft failed to appropriately distinguish between actions and statements that should be protected by freedom of expression, and actions and statements to incite hatred and violence, which should be prohibited.

A draft resolution on the universal realization of the right of peoples to self-determination was tabled by its main sponsor, Pakistan, and was approved today by consensus. The representative of Pakistan said that right was the cornerstone of the United Nations Charter and the two international covenants, and had been affirmed and upheld by various international summits, declarations and resolutions. The support shown to the resolution since its maiden introduction sent a strong message against foreign occupation.

The representative of Denmark, the main sponsor of the draft on torture and other cruel, inhuman or degrading treatment, said that people continued to be mistreated and tortured in all regions of the world, sometimes in an effort to extract information but, often, for no particular reason at all. In the face of those horrors, the United Nations had the responsibility to speak out against those acts, and he, thus, recommended the adoption of the resolution, hopefully by consensus. Delegates to the Third Committee responded by approving the draft, without a vote.

Also today, the Committee approved, by consensus, a draft resolution on the enlargement of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees, which would have the Assembly increase number of members in the Executive Committee from 76 to 78. According to Djibouti's delegate, the draft's main sponsors, Djibouti and the Republic of Moldova, both wanted to become members of the Executive Committee in an effort to help find sustainable solutions for internally displaced persons and refugees, worldwide.

The Committee also heard the introduction of three other draft resolutions today, on the new international humanitarian order, assistance to refugees, returnees and displaced persons in Africa, and the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, introduced by the representatives of Jordan, Mauritius and Cuba, respectively.

In other business, the Committee deferred consideration of two draft resolutions, which were expected to be acted on today, on the future operation of the International Research and Training Institute for the Advancement of Women and on trafficking in women and girls.

Also speaking on the texts of the draft resolutions and amendments acted on today were the representatives of the United Kingdom, South Africa, Norway, Argentina, Japan, New Zealand, Canada, Liechtenstein, Finland, Slovenia, Switzerland, Austria, Philippines, Turkey, Germany, Sweden, Australia, France, Ukraine, Egypt, Israel, Uganda, Jamaica, Sudan, Libya, Syria, China, Barbados, Malaysia, Timor-Leste, The former Yugoslav Republic of Macedonia, Swaziland, Mexico, Costa Rica, Angola, Colombia, Namibia, Albania, Gabon, Federated States of Micronesia, Spain, Croatia, Belize, Italy, Montenegro, Botswana, Burundi, Romania, Estonia and Uruguay.

The representatives of France, Venezuela, Afghanistan and Kyrgyzstan spoke concerning a draft resolution approved by consensus at a previous meeting, on international cooperation against the world drug problem.

The Committee will meet again at 10 a.m. on Thursday, 20 November, to take action on the draft resolution on a moratorium on the use of the death penalty, as well as several other outstanding draft resolutions.

Background

The Third Committee (Social, Cultural and Humanitarian) met today to take action on a number of draft resolutions, including a resolution on the enlargement of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees (document A/C.3/63/L.54), also expected to be introduced in the current meeting. By the terms of that text, the Assembly would decide to increase the number of members of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees from 76 to 78 States. It would further request the Economic and Social Council to elect the additional members at its resumed organizational session for 2009.

A draft resolution on the future operation of the International Research and Training Institute for the Advancement of Women (document A/C.3/63/L.14/Rev.1) was also before the Committee, for action.

The draft resolution on trafficking in women and girls (A/C.3/63/L.13/Rev.1) would have the General Assembly call upon Governments to discourage, with a view to eliminating, the demand that fosters the trafficking of women and girls and to take appropriate measures to address the factors that increase vulnerability to being trafficked, including poverty and gender inequality. At the same time, it would call upon all relevant actors to address that heightened vulnerability and associated gender-based violence. Recognizing the challenges to combating trafficking in women and girls owing to the lack of adequate legislation and implementation of existing legislation, the lack of availability of reliable sex-disaggregated data and statistics, and the lack of resources, the draft would have the General Assembly urge Governments to devise, enforce and strengthen effective measures to combat and eliminate all forms of trafficking in women and girls, to criminalize all forms of trafficking in persons, and to take all appropriate measures to ensure that victims of trafficking were not penalized for being trafficked.

Another draft resolution before the Committee would have the General Assembly adopt the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, by which States Parties to the Protocol would recognize the competence of the Committee on Economic, Social and Cultural Rights to receive and consider communications submitted by or on behalf of individuals or groups claiming to be victims of a violation of their economic, social and cultural rights. By that resolution (document A/C.3/63/L.47), the Assembly would adopt the Protocol and recommend that it be opened for signature in 2009. The text of the Optional Protocol, containing 22 articles, is annexed to the resolution.

A draft text, on the inadmissibility of certain practices that contribute to fuelling contemporary forms of racism, racial discrimination, xenophobia and related intolerance (document A/C.3/63/L.49), would have the Assembly express deep concern about the glorification of the Nazi movement and former members of the Waffen SS, including by erecting monuments and memorials and holding public demonstrations in the name of the glorification of the Nazi past, the Nazi movement and neo-Nazism, as well as by declaring or attempting to declare such members and those who collaborated with the Nazi movement as participants of national liberation movements. In turn, it would express concern at attempts to desecrate or demolish monuments erected in remembrance of those who fought against Nazism during the Second World War, as well as to unlawfully exhume or remove the remains of such persons. It would emphasize the need to take measures to end those practices, and reaffirm that States parties to the International Convention on the Elimination of All Forms of Racial Discrimination were obliged -- among other things -- to declare as a punishable offence the dissemination of ideas based on racial superiority or hatred.

A draft resolution, on the universal realization of the right of peoples to self-determination (document A/C.3/63/L.48), would have the Assembly declare its firm opposition to acts of foreign military intervention, aggression and occupation, while also calling on responsible States to cease their military intervention in, and occupation of, foreign countries and territories and all acts of repression, discrimination, exploitation and maltreatment -- particularly the brutal and inhuman methods reportedly employed for the execution of those acts against the people concerned. It would request the Human Rights Council to continue to give special attention to the violation of human rights, especially the right to self-determination, resulting from foreign military intervention, aggression or occupation.

A draft resolution, on torture and other cruel, inhuman or degrading treatment or punishment (document A/C.3/63/L.18/Rev.1), would have the General Assembly condemn any action or attempt by States or public officials to legalize, authorize or acquiesce in torture and other cruel, inhuman or degrading treatment or punishment under any circumstances, including on grounds of national security or through judicial decisions. The draft emphasizes that acts of torture in armed conflict are serious violations of international humanitarian law and, in that regard, constitute war crimes. It further emphasizes that acts of torture can constitute crimes against humanity and that the perpetrators of all acts of torture must be prosecuted and punished. The draft resolution would have the Assembly strongly urge States to ensure that no statement made as a result of torture is invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. It calls upon States parties to the Convention against Torture to fulfil their obligation to submit for prosecution or extradite those alleged to have committed acts of torture, and encourages other States to do likewise.

A draft resolution on the moratorium on the use of the death penalty (document A/C.3/63/L.19/Rev.1) and its seven amendments (documents A/C.3/63/L.62, L.63, L.64, L.65, L.66, L.67 and L.68) were also before the Committee. By the terms of that draft and its amendments, the General Assembly would recall its resolution 62/149 of December 2007 on the moratorium on the use of the death penalty, and would note the decisions taken by an increasing number of States to apply a moratorium on executions, or to restrict the application of the death penalty to the most serious crimes. While reaffirming the sovereign right of States to determine the legal measures and penalties which are appropriate to their societies, in accordance with international law, the draft text would have the Assembly request the Secretary-General to submit a report on the resolution for consideration at its sixty-sixth session, based on the information provided by Member States.

A draft resolution on national institutions for the promotion and protection of human rights (document A/C.3/63/L.23) would have the General Assembly acknowledge the role of national institutions in the strengthening of the rule of law and the promotion and protection of human rights in all sectors, and encourage cooperation with the United Nations system, as well as with the World Bank, other international financial institutions, and non-governmental organizations. It would also urge the Secretary-General to continue to give high priority to requests from Member States for assistance in the establishment and strengthening of national human rights institutions and to continue to provide the necessary assistance for holding international and regional meetings of national institutions.

The Committee was also expected to act on a draft resolution on the effective promotion of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (document A/C.3/63/L.25/Rev.1), which would have the General Assembly urge States and the international community to promote and protect the rights of persons belonging to national or ethnic, religious and linguistic minorities, through the encouragement of conditions for the promotion of their identity, the provision of adequate education and the facilitation of their participation in all aspects of the political, economic, social, religious and cultural life of society. It would also urge States to take all necessary constitutional, legislative, and administrative measures to give effect to the Declaration, and would call upon them to cooperate with the independent expert on minority issues. The draft also welcomes the establishment of the Forum on Minority Issues and all relevant actors to participate actively in its inaugural session, to be held on 15 and 16 December 2008 in Geneva.

A draft text on missing persons (document A/C.3/63/L.36) would have the Assembly call on States party to an armed conflict to take measures to prevent persons from going missing in connection with such conflict and account for persons reported missing as a result of such situations. It would further call on those States to determine the identity and fate of persons reported missing in connection with armed conflict and, to the greatest extent possible, provide their family members with information on their fate. It would further urge States to encourage intergovernmental and non-governmental organizations to provide appropriate assistance as requested by concerned States, and would welcome, in that regard, the establishment and efforts of commissions and working groups on missing persons. Without prejudice to States' efforts to determine the fate of missing persons in connection with armed conflicts, the draft resolution would have States take appropriate steps in terms of the legal situation of missing persons and the needs of their family members -- their social welfare, financial matters, family law and property rights.

Recalling that the family, as the basic unit of society, was entitled to receive comprehensive protection and support, the draft resolution on respect for the right to universal freedom of travel and the vital importance of family reunification (document A/C.3/63/L.43) would have the Assembly call on all States to guarantee the universally recognized freedom of travel to all foreign nationals legally residing in their territory, and reaffirm that all Governments -- particularly of receiving countries -- must recognize the vital importance of family reunification and promote its incorporation into national legislation, so as to ensure protection of the unity of families of documented migrants. It would call on States to allow, in conformity with international legislation, the free flow of financial remittances by foreign nationals residing in their territory to relatives in the country of origin, and further call on States to refrain from enacting, or to repeal existing laws, that adversely affect family reunification and the right to send remittances.

A draft resolution on improving the coordination of efforts against trafficking in persons (document A/C.3/63/L.9/Rev.1), also before the Committee, would have the General Assembly call upon Governments to criminalize trafficking in persons in all its forms, to take measures to criminalize child sex tourism, and to investigate, prosecute, condemn and penalize traffickers and intermediaries, while providing protection and assistance to the victims of trafficking with full respect for their human rights. The draft would also have the Assembly invite Member States to continue consideration of the advisability of a global plan of action on preventing trafficking in persons, prosecuting traffickers and protecting and assisting victims of trafficking, which would achieve the full and effective coordination of efforts against trafficking in persons, and ensure the full and effective implementation of all legal instruments relevant to trafficking in persons. At the same time, it would request the Secretary-General to submit to the General Assembly at its sixty-fourth session a report on the implementation of the present resolution and on possible approaches to improve coordination of efforts against trafficking in persons.

The Committee was also expected to hear the introduction of three other draft resolutions, including on: the new international humanitarian order (document A/C.3/63/L.55); assistance to refugees, returnees and displaced persons in Africa (document A/C.3/63/L.58); and the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination (document A/C.3/63/L.50/Rev.1).

It was also expected to hear the continuation of the explanation of vote on the draft text on international cooperation against the world drug problem (document A/C.3/63/L.8/Rev.1), which was acted on by the Committee on 11 November, 2008. (For background, see Press Release GA/SHC/3937).

Continuation of Explanation of Vote

The Committee began by hearing the remaining explanations of action relating to a draft resolution that was considered at its previous meeting, on international cooperation against the world drug problem (document A/C.3/63/L.8/Rev.1)

The representative of France said his country had joined with the consensus on the draft resolution, which had been approved without a vote, though he expressed his delegation's regret over the failure to reach consensus on language regarding decreasing drug use as a means of overall demand reduction. Such efforts would be complementary to other measures to treat drug users and to reduce the vulnerability of drug users. Two prior General Assembly resolutions had dealt with efforts to reduce damage related to drug use, and it was important to remember that there were real human beings who were hurt by the failure to effectively reduce drug use. Since 1988, the concept of reducing damage related to drug use had been accepted and elaborated. He expressed his delegation's support for a focused resolution, which left out issues that were not directly related to the world drug problem, with the exception of some specific cases and countries. Overall, combating the drug problem would require multilateral cooperation, as well as an effective evaluation of comprehensive strategies, especially with respect to alternative programmes.

The representative of Venezuela expressed appreciation about the consensus reached on the resolution, but said he had some reservations regarding preambular paragraph 6 and operative paragraph 30 of the text. He said he saw no direct, permanent links between terrorism and transnational crime, because each was premised on different motives. Also, the text had not recognized the principle of due process and innocent until proven guilty.

The representative of Afghanistan said her country had welcomed the adoption of the resolution by consensus, and thanked those that had facilitated negotiations. She expressed gratitude to all delegates that had supported Afghanistan's position, which had contributed to a text that was balanced and comprehensive. Her Government shared the concerns of the international community regarding the global drug problem and was fully committed to responding to the challenges posed, as they related to Afghanistan. The question of illegal drugs was a major challenge to the country's search for lasting solutions regarding security, development and rule of law, and also posed risks to the wider region.

She said her country had made progress in damping down the production and trafficking of drugs in its territory. The national drug control strategy had succeeded in reducing the amount of opium poppies harvested in Afghanistan. A document of the United Nations Office on Drugs and Crime (UNODC) had reported that opium growth had seen a 19 per cent drop, and opium production had dropped 6 per cent last year. That result was remarkable, given that only six of the 34 provinces were covered by the strategy in 2006. Now, more provinces were covered.

She said that the present forum was not the appropriate venue for discussing the drug problem in Afghanistan, and that the body in Vienna was more appropriate. The goal, at present, was to strengthen international cooperation at the global level, which necessitated a multilateral approach and based on the principle of a common and shared responsibility. Equal attention should be paid to both supply and demand. The resolution would have been out of balance if it had included the paragraph on her country. She noted that, last week, the General Assembly had adopted a resolution touching on Afghanistan's development and had touched on the drug trade. It had been an opportunity for delegations to renew their support for her country's reconstruction efforts, of which the problem of drugs was a part. The report from the UNODC had said that 98 per cent of opium plants were grown in Taliban-controlled provinces. A discussion on drugs in Afghanistan was taking place within the working group of the General Assembly on Afghanistan, and focused on holistic solutions. It was unfortunate that no compromise could be found with the Russian Federation on the issue of her country being included in the text.

The representative of Kyrgyzstan said that, over the years, her delegation had co-sponsored the draft resolution and she regretted that, this year, it had been unable to do so before its approval. However, she hoped that, before the draft went to the General Assembly, her delegation's name would be included as a co-sponsor.

The Secretariat duly took note of the request.

Introduction of Resolutions

The representative of Djibouti, also speaking on behalf of the Republic of Moldova, introduced the draft resolution on the enlargement of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees (document A/C.3/63/L.54), which was aimed primarily at increasing the number of members in the Executive Committee, from 76 to 78. She noted that the draft also requests the Economic and Social Council to elect the additional members at its resumed organizational meeting in 2009.

Preserving the rights of internally displaced persons and refugees was a high priority for the Governments of Djibouti and the Republic of Moldova, and that was why they were presenting the resolution to enlarge the size of the Committee, she said. Due to its important role in the international protection of displaced persons and refugees, both Djibouti and the Republic of Moldova wanted to become members of the Executive Committee. Both countries were party to the relevant international conventions and protocols, as well as regional instruments. Indeed, the Republic of Moldova was a privileged destination for asylum-seekers across the world, and Djibouti had been a "natural haven" for thousands of refugees over the years. The membership of the two countries to the Executive Committee would help contribute to the overall efforts of the international community to help the lives of internally displaced persons and refugees, specifically in terms of finding sustainable solutions for those groups on regional and international levels.

Introducing the draft resolution on a new international humanitarian order (document A/C.3/63/L.55), the representative of Jordan said that her delegation had been tabling similar resolutions since 1981, due to the high priority it placed on alleviating the suffering of people worldwide, and based on the principle that such alleviation was one of the main responsibilities of States. This year's resolution focused on international, regional and national efforts to address international emergencies and highlighted the role of non-governmental organizations and civil society, among other relevant actors. She thanked participants of the informal consultations for their contributions to the draft text. After making one minor oral revision, she expressed her delegation's hope that the draft resolution would be approved by the Committee, without a vote.

The Committee then turned to the draft resolution on assistance to refugees, returnees and displaced persons in Africa (document A/C.3/63/L.58), which was introduced by the representative of Mauritius on behalf of the African Group. He said the annual resolution addressed the needs of 15 million refugees, returnees and displaced persons in Africa, and would have the Assembly express concern over their plight. Although the number of displaced persons was reported to have decreased recently, it was nevertheless distressing to see the growing number of displaced persons arising out of conflict. The text paid tribute to the ongoing process by the African Union to produce a convention for the protection and assistance of displaced persons, and which underscored protection for women and children and refugees. He voiced hope that the text would enjoy the same consensus this year as it had enjoyed over the years.

Finally, the Committee heard the introduction of the draft resolution on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination (document A/C.3/63/L.50/Rev.1) by the representative of Cuba. She said the subject of mercenaries was highly relevant to current times. Some States continued to use mercenaries as a means of toppling legitimate Governments, or as a way to confront individuals who were fighting the just cause of national liberation. The text would have the Assembly urge Member States to be vigilant in the use of mercenaries and would call on legislative measures to be introduced by States to prevent the training, financing, grouping or transit of mercenaries on their territories, and condemned the attitude of impunity towards those undertaking such activities. It would call on the working group to continue work undertaken by the Special Rapporteur to strengthen the international legal framework on that issue, while bearing in mind the legal definition of mercenaries as proposed by the previous Special Rapporteur in his report to the then Human Rights Commission at its sixtieth session. She drew attention to some changes in the text, as reflected in Revision 1, as proposed by South Africa. They touched on the work of the working group; the need to look into the root causes and political motivation behind mercenary-related activities; and on efforts by the working group to continue its work on developing a possible text touching on the further protection of human rights as it related to mercenary activities.