Australian statement delivered by Christine Ernst, Adviser, Australian Mission to the UN on 18 December 2008 to the General Assembly Plenary as an Explanation of position on the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
18 December 2008
(As delivered)
We wish to take this opportunity to highlight the way in which Australia interprets a number of key issues in the Optional Protocol.
The purpose of the Optional Protocol is to establish an avenue for redress for individuals whose rights under the Covenant have been violated. We recall that the Human Rights Committee has determined, with reference to the OP to the ICCPR, that its jurisdiction cannot be invoked by an individual when the alleged violation concerns a collective right. Some of the rights recognised and protected by the Covenant, including the right to self-determination, are not individual human rights, but collective rights of all peoples. Consistent with the Human Rights Committee's previous determinations, Australia believes that these rights should not be justiciable by the Committee on Economic, Social and Cultural Rights under this Optional Protocol.
Secondly, we note that article 4 gives the Committee a discretion to decline jurisdiction if the complainant has not suffered any clear disadvantage. Australia understands that this discretion is designed to ensure that the Committee's time is not devoted to spurious complaints, but only to those cases where the complainant establishes a clear, personal disadvantage.
We also understand that the Optional Protocol establishes a complaints mechanism for aggrieved individuals, although article 4 acknowledges that an individual complaint may reveal a serious issue of general importance. Serious issues of general importance can be better addressed through the regular monitoring and reporting obligations in articles 16 and 17 of the Covenant itself, and the inquiry procedure under articles 11 and 12 of the Protocol, which are specifically designed to implement strategies to resolve those serious issues.
Finally, Australia wishes to highlight the reasonableness test in article 8(4) of the Optional Protocol. This article recognises that States Parties may choose from a range of possible policy measures to implement Covenant rights, in accordance with the 'progressive realisation' requirement in article 2 of the Covenant. The implementation of economic, social and cultural rights, by their nature, involves balancing competing resource priorities, and the Covenant requires a State Party to take steps towards the realisation of Covenant rights to the maximum of its available resources. Article 8(4) directs the Committee to bear in mind that a State Party may adopt a range of possible policy measures for the implementation of Covenant rights. In other words, the Committee, in carrying out its responsibilities under the Optional Protocol, acknowledges the discretion of the State party to make legitimate decisions about resource allocation when pursuing Covenant rights.