por Portugal aos Órgãos de Controlo da Aplicação
dos Tratados das Nações Unidas em Matéria de
Summary Record of the 10th Meeting
: Portugal. 04/05/2000. /C.12/2000/SR.10. (Summary Record)
COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, Twenty-second
SUMMARY RECORD OF THE 10th MEETING, Held
at the Palais Wilson, Geneva, on Monday, 1 May 2000, at 3 p.m.
Chairperson: Mrs. BONOAN-DANDAN
CONSIDERATION OF REPORTS: (a) REPORTS
SUBMITTED BY STATES PARTIES IN ACCORDANCE WITH ARTICLES 16 AND 17
OF THE COVENANT (continued)
Third periodic report of Portugal (continued)
MISCELLANEOUS MATTERS (continued)
SUBSTANTIVE ISSUES ARISING IN THE IMPLEMENTATION
OF THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
This record is subject to correction.
Corrections should be submitted in one of the
working languages. They should be set forth in a memorandum and
also incorporated in a copy of the record. They should be sent within
one week of the date of this document to the Official Records Editing
room E.4108, Palais des Nations, Geneva.
Any corrections to the records of the meetings
of the Committee at this session will be consolidated in a single
corrigendum to be issued shortly after the end of the session.
The meeting was called to order at 3.05 p.m.
CONSIDERATION OF REPORTS: (a) REPORTS SUBMITTED
BY STATES PARTIES IN ACCORDANCE WITH ARTICLES 16 AND 17 OF THE COVENANT
(agenda item 6)
Third periodic report of Portugal (E/1994/104/Add.20)
1. At the invitation of the Chairperson, Mr.
Mendonça e Moura, head of the Permanent Mission of Portugal
to the United Nations Office at Geneva, took a place at the Committee
2. The CHAIRPERSON invited Mr. Mendonça
e Moura to address the Committee.
3. Mr. MENDONÇA e MOURA (Portugal) said
that he deeply regretted any inconvenience caused to the Committee
at the previous meeting by the absence of a Portuguese delegation.
He had already been in touch with the Office of the High Commissioner
for Human Rights in order to clarify the situation, but he wished
to explain to the Committee itself why no Portuguese delegation
4. The Portuguese mission to the United Nations
Office at Geneva had been informed in a note from the High Commissioner
dated 6 December 1999 that the Committee would deal with the third
periodic report of Portugal on 1 and 2 May 2000. At the beginning
of February, he had personally dispatched a member of the Portuguese
mission to explain to the Committee secretariat why that date was
not possible and to ask for a postponement for a number of reasons.
As Portugal would be occupying the Presidency of the European Union
at that moment, a Portuguese delegation would accordingly be chairing
and coordinating the representation of the Union in all matters
involving human rights. Portugal would therefore be deeply involved
in the work of the Commission on Human Rights. It would also be
chairing the Preparatory Committee of the forthcoming Conference
on Racism as well as responding to questions on the Portuguese report
under the Convention against Torture.
5. The secretariat's response to the request
for a postponement had been to suggest that Portugal should exchange
dates with Italy, whose report was to be considered on 27 and 28
April. Those dates, however, were equally inconvenient, coinciding
as they did with the last two days of the session of the Commission
on Human Rights, when the voting on resolutions would be taking
place. The mission had nevertheless contacted the Italian mission,
which had in the event been unwilling to make the exchange. Also
early in February, as an alternative solution, the Portuguese mission
had suggested, without success, postponing consideration of the
Portuguese report under the Convention against Torture. He had then
done his best to make up three separate delegations to deal with
what were essentially closely related matters. A delegation had
been appointed to attend the Committee against Torture, and another
to coordinate the position of the European Union at the Preparatory
Committee for the Conference against Racism. When the time had come
to appoint a delegation to attend the Committee on Economic, Social
and Cultural Rights, it had become apparent that it would only be
possible to send a four-man team, none of whom would be in a position
to answer detailed questions on health and education, matters which
Portugal took very seriously. He had therefore personally advised
the Department of Foreign Affairs in Lisbon not to send the proposed
delegation but rather to ask for a postponement. A written message
had accordingly been dispatched on 27 April 2000 requesting the
Committee's indulgence and asking it to consider postponing its
examination of the third periodic report. He regretted that, although
the note in question had been signed and transmitted on the afternoon
of 27 April, it had not been brought to the Committee's attention
despite the personal efforts made at the time by the deputy head
of the permanent mission.
6. He repeated that he regretted any inconvenience
to the members of the Committee and emphasized that it was Portugal's
deep interest in the rights set forth in the Covenant which made
it unwilling to send a delegation that would be unable to answer
all the Committee's questions satisfactorily. He again requested
that the Committee postpone its consideration of Portugal's third
7. Mr. RIEDEL said that a postponement would
have a serious impact on the Committee's schedule. If it was suggested
that the report should be considered at the extraordinary session
to be held in August 2000, could the Mission undertake that Portugal
would be prepared to attend on the agreed date?
8. Mr. MENDONÇA e MOURA (Portugal) said
he would convey the proposed date immediately to the Department
of Foreign Affairs in Lisbon. He believed that any date towards
the end of the extraordinary session would be welcome. He noted
that it would be very difficult for a delegation to attend in mid-August.
9. The CHAIRPERSON pointed out that the Committee's
summer session was to end on 1 September. It would be impossible,
therefore, to arrange for a September hearing. The Committee would
bear in mind the Mission's preference for the end of August.
10. Mr. GRISSA said he believed that six countries
were scheduled to appear at the summer session. Was there any possibility
that one of those countries might not come? Could there be some
11. Mr. SADI said that if the Committee agreed
to postpone consideration of the Portuguese report for some six
months, could the current report be updated in the meantime? That
would make the exercise more valuable to both parties.
12. Mr. MENDONÇA e MOURA (Portugal) said
that the Portuguese delegation would of course do its best to bring
with it any available updated information.
13. The CHAIRPERSON said that the members of
the Committee would continue their deliberations among themselves
and their decision would be conveyed to the Portuguese mission in
14. Mr. Mendonça e Moura (Portugal) withdrew.
15. Mr. WIMER ZAMBRANO said that the detailed
apology offered by the head of the Portuguese mission made it unnecessary
to discuss the matter further. The Committee could decide at once
whether or not the suggested date was acceptable.
16. Mr. TEXIER said that in his view the Committee
should accept the proposal. He believed that Portugal did in fact
take its commitment under the Covenant seriously. He noted that
according to the Portuguese mission a postponement had been requested
in February. Why had no proper answer been given at the time?
17. Mr. TIKHONOV (Secretary of the Committee)
said that in February a member of the Permanent Mission of Portugal
had contacted the secretariat, saying that it would not be convenient
for the Portuguese report to be considered at the current session
because it would coincide with the meeting of the Commission on
Human Rights. The same consideration had been expressed by other
States scheduled to appear at the current session. He had explained
to each of them that all the reports would be discussed towards
the end of the Commission's session, after its resolutions had been
adopted, and they should therefore have no difficulty attending
the Committee to present their reports. It had been suggested that
they should discuss among themselves any change in the order of
consideration of the reports to suit their various requirements.
All had said they wished their reports to be considered in the order
already established by the Committee.
18. It was the practice of the secretariat,
once the Committee had taken its decision, to send a note verbale
immediately to all States parties scheduled for the next session,
giving the dates on which their reports would be considered. The
last paragraph of the note verbale stated that, if no formal notification
was received to the contrary within six weeks, it would be assumed
that the suggested dates were acceptable. No such notification had
been received from Portugal. Up to the start of the session he had
been in regular contact with the Portuguese mission and had been
assured that a delegation would be attending. The last such conversation
had taken place on 26 or 27 April, when it had been assumed that
Portugal would be present.
19. The CHAIRPERSON said that she sensed that
the Committee was willing to postpone consideration of the Portuguese
report to a date in the not too distant future. Since Portugal would
have difficulty in attending in August, and the extraordinary session
was due to end on 1 September, it would appear that the earliest
time would be in the autumn, at the Committee's November-December
meeting. It would therefore be necessary to move one of the States
parties due to be considered in the autumn to the following spring
session in order to accommodate Portugal. The list of reports to
be considered at the extraordinary session, those of Honduras, Mongolia,
Sudan, Kyrgyzstan, Australia, Venezuela and Belgium, would stand.
The reports due to be considered in the autumn were those of Morocco,
Japan, Yugoslavia, the Syrian Arab Republic and China-Hong Kong
Special Administrative Region. She proposed that the Chinese report
be postponed to the following spring session and that the Portuguese
report be the first to be taken up in November.
20. Mr. AHMED said that the Committee would
need to know whether the suggested date in November was agreeable
21. The CHAIRPERSON said that, since Mr. Mendonça
e Moura had agreed to Mr. Sadi's suggestion for a postponement of
the order of six months and to the updating of the report, she felt
that November could safely be assumed to be acceptable.
MISCELLANEOUS MATTERS (agenda item 9) (continued)
22. Mr. TIKHONOV (Secretary of the Committee)
reminded the Committee that, at its afternoon meeting on Friday,
5 May 2000, it was to hear Mr. Fantou Cheru, the Special Rapporteur
on structural adjustment and its impact on economic, social and
23. The CHAIRPERSON said that, after hearing
from the Special Rapporteur, the Committee would proceed with its
scheduled review, without report, of the implementation of the International
Covenant on Economic, Social and Cultural Rights in the Republic
of the Congo.
SUBSTANTIVE ISSUES ARISING IN
THE IMPLEMENTATION OF THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL
AND CULTURAL RIGHTS (agenda item 3) (continued)
24. Mr. RIEDEL said that, with the Chairperson's
permission, he would like to introduce a draft new paragraph 19
for insertion in the proposed General Comment on the right to health,
which was intended to replace the existing paragraphs 12 and 19.
The draft described the core obligations of States parties relating
to the right to health, using broadly the same approach as that
adopted in General Comment 13. The Committee had to make a policy
decision on whether or not to include a demanding list of those
obligations which all States, rich or poor, should fulfil as a bare
minimum. Some developing countries might take the view that the
proposed list in paragraph 19 was too exacting. However, he believed
that developing countries might be able to negotiate less strict
conditions on loans from international financial institutions if
they could argue that excessively strict conditions would prevent
them from meeting the minimum requirements laid down by the Committee
on Economic, Social and Cultural Rights for guaranteeing the right
to health. He therefore proposed that paragraph 19 should list the
core obligations in the text circulated to the members of the Committee.
Further items could be added although he felt personally that the
list proposed represented the maximum that the Committee could specify
while remaining within its mandate.
25. Mrs. JIMÉNEZ BUTRAGUEÑO said
that retrogressive measures should not be adopted without careful
consideration. Since many countries were reducing their expenditure
on health, she proposed adding to the core obligations a provision
similar to that at the end of paragraph 9 of General Comment 3,
to the effect that States parties should take measures to the maximum
extent of available resources.
26. Mr. HUNT (Rapporteur for the draft general
comment) said that he agreed with Mrs. Jiménez Butragueño's
view that it was important to be cautious about introducing retrogressive
measures; that principle had been incorporated into General Comment
3 and re-endorsed in General Comment 13, and should be expressed
in the same terms in the draft general comment on the right to health.
It should be possible to reformulate the core obligations accordingly.
27. The idea of core content had been applied
in General Comment 3; however, the Committee had struggled over
how to incorporate it into General Comment 13 and had eventually
taken the pragmatic approach of defining not the core content but
the core obligations incumbent upon States parties. The Committee
had decided to recommend adopting the same approach in the general
comment on the right to health. However, if the Committee decided
to approve the list of core obligations, it would be unfair not
to insist also that richer countries fulfil their obligations relating
to international cooperation under article 2, paragraph 1, of the
Covenant. The two sets of obligations should be seen as two halves
of a package.
28. Mr. SADI said that he was concerned that
the draft general comment did not take sufficient account of possible
future developments in health matters, such as those in biotechnology
and cloning. The general comment should show that the Committee
was aware of issues that might arise in the future, not just issues
of current importance. He would also like it to be stated in the
general comment that the Committee encouraged research into major
health problems such as cancer and the effects of smoking.
29. The CHAIRPERSON pointed out that many of
the issues raised had already been discussed at a meeting a few
days previously with representatives of the World Health Organization
(WHO) an other health experts. It had been agreed at that meeting
that it was not possible or appropriate for the general comment
to refer individually to every health problem that might need to
be addressed. WHO had its own guidelines and was the organization
best equipped to deal with specific health problems, whereas the
purpose of the general comment was to define States parties' core
obligations. She also endorsed the point made by Mr. Hunt that the
general comment should emphasize that it was incumbent upon wealthier
countries to assist developing countries in fulfilling those core
30. Mr. CEAUSU suggested that the idea, contained
in subparagraph 3 of the draft new paragraph 19, of "measures
to protect and promote the health of the whole population"
should be expanded to include the idea of combating actions that
could affect public health and the exercise of the right to health.
It was important for States parties to be active in defending the
interests of society against such actions, and against private interests
- for example tobacco and alcohol companies - that represented a
threat to public health.
31. Mr. RIEDEL thanked the members of the Committee
for their comments and asked Mr. Ceausu to submit his proposed addition
to subparagraph 3 in writing for discussion by the drafting group.
Any other additions to the draft text of the new paragraph 19 should
be as short and clear as possible. The plan to structure the obligations
in the same way as in the General Comments on the right to food
and the right to education would deal with some of the other points
32. The aim of the draft general comment was
not to list all the obligations that were considered important but
to list only those that were absolutely essential. He agreed that
the general comment should be formulated as broadly as possible
in order to take account of future developments. However, it should
not address such developments specifically because its purpose was
to interpret existing legal obligations. The Committee's mandate
was to monitor the fulfilment of those obligations by States parties;
it did not extend to legislating or policy-shaping, which were a
matter for States themselves or for organizations such as WHO.
33. He agreed with Mrs. Jiménez Butragueño
that it was necessary to be cautious about applying retrogressive
measures; however, he was unsure whether a reference to that principle
should be included in the list of core obligations. The list was
already sufficiently long and demanding and the need for caution
regarding retrogressive measures was addressed elsewhere in the
draft general comment.
34. Mrs. JIMÉNEZ BUTRAGUEÑO said
that, since many countries were aiming to cut health spending, she
felt it was important in the general comment to urge States to continue
allocating the maximum possible resources to the right to health.
35. Mr. RIEDEL said that Mr. Pillay had passed
him some minor language changes which would be incorporated into
the draft text.
36. Mr. SADI asked whether it would be possible
in the general comment to request any specific measures, such as
the phasing-out of leaded petrol, which clearly had a devastating
impact on the health of people in developing countries.
37. Mr. GRISSA said that he did not think it
was possible to go as far as naming specific health risks in the
38. Mr. WIMER ZAMBRANO said that the Committee
should be sure to stay within the scope of its mandate. It did not
have the necessary expertise to address technical issues such as
specifying what kind of petrol people should use, even if such measures
seemed reasonable and obvious. Its proposals had to be strictly
of a general and legal nature.
39. Mr. RIEDEL agreed that the health risk posed
by leaded petrol was an important issue; however, WHO was the organization
best placed to address it and was, in fact, already doing so. He
endorsed the comments made by Mr. Wimer Zambrano on the subject
of the Committee's mandate.
The meeting rose at 4.15 p.m.