No. 4: Optional Protocol to the International Covenant on Economic, Social & Cultural Rights

Article based on interview with Christian Courtis & Ulrik Halsteen OHCHR, Human Rights & Social and Economic Issues Unit & Claire Mahon, Geneva Academy of International Humanitarian Law and Human Rights, Project on Economic, Social and Cultural Rights

Closing a historic gap in human rights protection under the international system, the Optional Protocol represents a veritable milestone in the history of universal human rights, making a strong and unequivocal statement about the equal value and importance of all human rights and the need for strengthened legal protection of economic, social and cultural rights. It will move us closer to the unified vision of human rights of the Universal Declaration. Importantly, it will enable victims to seek justice for violations of their economic, social and cultural rights at the international level for the first time. “.

—  UN High Commissioner for Human Rights, Navi Pillay, in address to the General Assembly, 10 December, 2008.

Background

On 10 December 2008, the UN General Assembly adopted by consensus the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR).  The Protocol allows individuals to seek justice for violations of their economic, social and cultural rights (ESCR) at the international level, for the first time, through the establishment of a communications procedure (individual complaints process) and an inquiries procedure.  The formal adoption of the protocol on 10 December 2008 – International Human Rights Day and during the commemoration of the 60th anniversary of the UDHR – is deeply symbolic.  For many years the ICESCR was one of the only major human rights treaties to lack a petition mechanism; the Optional Protocol to the ICESCR confirms the equal value and importance of all human rights, as initially envisaged by the Universal Declaration of Human Rights, and remedies a long-standing gap in human rights protection under the international system.

1- How did the Optional Protocol come into being, and why is it important?

Discussions on the need for an Optional Protocol have been ongoing for more than 18 years.  After a period of slow progress, the Human Rights Council, in June 2006, mandated an open-ended Working Group to draft this new human rights instrument.  The basic issue at stake was the lack of a complaints mechanism for rights enshrined in the ICESCR, i.e. the inability to fulfill the promise of a right to a remedy for victims of violations of rights such as the right to adequate housing, health, food, water, social security and work. The implication was that ESCR are less important, and not full-fledged rights fit for adjudication. This is in clear violation of the principle of indivisibility, interdependence and equal value of all human rights, a principle embodied in the text of the Universal Declaration of Human Rights. In fact, the absence of a complaints mechanism to the ICESCR amounted to relegating ESCR a second-class status.

The adoption of an OP-ICESCR may help to adjust such perceptions, and re-position ESCR as being on par with civil and political rights (CPR).  More importantly, it provides victims with an international accountability mechanism for their ESCR.  Lastly, the Optional Protocol means that the Committee on ESCR can, through reviewing cases, further refine the understanding of the content of the rights, both using and strengthening domestic and regional jurisprudence in the process.  The existence of an international complaints mechanism could also act as an incentive to strengthen the protection of ECSR at the national level.

2- What are /have been the key challenges in getting the Optional Protocol adopted?

Several misconceptions around the OP-ICESCR have had to be challenged including the belief that ESCR are too vague to be enforceable, and are mere aspirations or policy goals.  Perhaps the most difficult has been getting the international community to recognize that ESC rights are justiciable i.e. can be adjudicated by court or tribunal.  States maintained that ESCR are “different in nature” to CPR and not suitable for adjudication due to: (i) the concept of “progressive realization;” (ii) the obligation to undertake steps “to the maximum of the available resources” to realize ESCR, and (iii) on the basis of the potential resource implications of the decisions.  It has often been suggested that matters involving the allocation of resources and/or public policy questions should be left to the political authorities rather than the courts and UN Treaty bodies.

Consequently, some “human rights re-education” was necessary; gradually and by the end of the inter-governmental negotiations on the OP, the majority of States no longer accepted these views.  States were eventually convinced that many of the assumptions against the justiciability of ESCR overstate the differences between ESCR and CPR.  CPR might also be vague, limit the scope of decision of political authorities, and also entail positive obligations that have resource implications, but this has never been reason to deny their justiciability.  Through demonstrating examples of hundreds of cases from all parts of the world, the case was made that ESCR are justiciable and that a wide degree of discretion is given to governments to devise the appropriate response (see the ESCR-Net caselaw database for examples of ESCR that have been addressed by national and international bodies).   Eventually, and by consensus, States decided to adopt a mechanism for holding ESCR violators to account.

Another (continuing) key challenge is helping governments understand that an Optional Protocol does not add any new obligations; those States that are parties to the ICESCR already have binding legal obligations to respect, protect and fulfill ESCR. The Optional Protocol just provides a remedial mechanism for victims to enable enforcement, and fixes a gap in the system which should not have existed in the first place.

3- What provisions does the Optional Protocol include?

The Optional Protocol provides for a communications procedure (i.e. complaints mechanism), in the same way that the Optional Protocols to the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination against Women do. The communications procedure allows victims of violations of ESCR to present complaints before the Committee on Economic, Social and Cultural Rights; the committee can in turn review individual complaints in a similar way to that of traditional human rights courts. The procedure provides for the possibility of a friendly settlement and of so-called ‘interim measures’ which the State may be requested to take to avoid possible irreparable damage to the victims of the alleged violations. The Optional Protocol also provides for an inquiry procedure, allowing the Committee to initiate an investigation if it receives reliable information indicating grave or systematic violations of the ICESCR by a State Party. The inquiry procedure only comes into operation if States make a specific declaration to be bound by it (opt in clause).

Having an international complaints mechanism like the OP-ICESCR, and the possibility for the Committee on ESCR to review complaints will contribute to further clarifying the content of the obligations from the provisions of the ICESCR, and provide guidance to national courts.

5Who can use the complaints process, and how does the process work?

5- Who can use the complaints process, and how does the process work?

Any individual or group of individuals (including communities, NGOs, trade unions, etc) can lodge a complaint alleging a violation of all or any ESCR, provided their government has ratified the OP-ICESCR. Authors of the communication (usually victims, or those acting for them) must first exhaust all available domestic remedies, present the communication within a year of that exhaustion, and ensure that the same case has not been presented before a similar international mechanism.

Complaints should allege the existence of a violation of one or more of the ESCR recognized in the ICESCR – for instance, a violation of the rights to education, food, health, housing, social security, or to labor-related rights. While during the session of the Working Group there was some debate about the nature of the violations of ESCR, sufficient guidance comes from the existing General Comments of the Committee on ESCR, which usually offer examples about typical violations of ESCR. For example, violations of ESCR can occur when States interfere unduly with their enjoyment, i.e. unjustified forced evictions; when they fail to adopt steps towards their full realization, i.e. lack of specific and targeted measures to ensure universal access to primary education; when they provide for or deny rights in a discriminatory manner, i.e. extra requirements to enjoy pension rights for women; or when they fail to comply with minimum core obligations, i.e. deaths by starvation when sufficient food is in stock and food programs are available; or adopt deliberately retrogressive measures without a proper justification, i.e. abrogation of existing legislation awarding worker’s injury compensation.

Please refer to the accompanying article on the OP-ICESCR: A CSO perspective for an example of a recent ESCR case.

6- What kinds of remedies can realistically be proposed? How will states be held accountable for implementing these?

The Optional Protocol to the ICESCR, like other communications mechanisms, creates a quasi-judicial system; “views” of the Committees are not judicial decisions. The practice of other Committees regarding remedies is characterized by self-restraint; “views” usually recommend States to provide adequate remedies, but do not go into detail about these remedies, leaving States a wide degree of discretion to devise appropriate responses and select the means by which to implement their respective obligations. Sometimes, however, they do specify how the Government is to rectify the situation, for example through restitution or compensation.  But probably the most important aspect of communications is the power of the treaty bodies to decide on whether in a particular situation a violation of a right occurred. Committees can follow up the measures taken by States as a result of “views” through their subsequent dialogue with them –for example, in the review of their next State party report.  Governments may also be questioned on their implementation of the Committee’s “views” during their examination under the new Universal Periodic Review at the Human Rights Council.

7- How can UN agencies and UNCTs support states in a) ratifying the Optional Protocol and b) implementing it?

UN agencies and UNCTs should advocate for the ratification of the Optional Protocol in the context of their work towards the full realization of all human rights, and of ESCR in particular.

The Optional Protocol can highlight the need to provide for remedies regarding violations of ESCR in the domestic sphere, and to deal with ESCR as rights and not just as charity. This is an important component of the rights-based approach to development: steps adopted in order to ensure access to health care, education, food or water should be translated into entitlements, and remedies should be provided for cases of violation. The development of international jurisprudence can, in turn, have influence on domestic judicial systems and help overcome traditional prejudices and barriers regarding the justiciability of ESCR. In turn, taking ESCR seriously as rights, and not just as policy goals, is a way of giving full meaning to the interdependence and indivisibility of all human rights.  Through the Optional Protocol, the Committee on ESCR can help provide guidance and assistance to governments in their efforts to implement the rights contained in the ICESCR.

Training of judges, public servants and civil society organizations and encouraging legal and judicial activism could also be important steps towards the ratification and implementation of the Optional Protocol and ensuring that domestic courts and tribunals adequately provide redress for victims of violations of ESCR.  The Optional Protocol will be opened for signature March 2009, and UN country offices, civil society organizations social movements and individuals can work to ensure their States become party to this instrument.


The Optional Protocol to the ICESCR:
A CSO perspective

The Optional Protocol is the result of several decades of work by governments, civil society, experts and the UN human rights bodies to remedy a long-standing gap in the human rights protection under the international system.  The International NGO Coalition on the OP-ICESCR has been instrumental in raising awareness of the need and benefits of an optional protocol to the ICESCR, and lobbying for its adoption and ratification.
Below, Claire Mahon, former member of the steering committee of the International NGO coalition for an Optional Protocol to the ICESCR, answers some questions from a CSO perspective.

1- What have been the key challenges involved in getting the OP approved?

The key challenge has been helping the international community to overcome its sometimes very outdated approach to human rights, by demonstrating through the examples of hundreds and thousands of cases from all parts of the world that ESC rights are justiciable.  Some governments, and indeed some human rights experts, know that a human rights violation occurs when someone is tortured or arbitrarily detained, but they struggle to translate mass starvation, forced evictions, maternal mortality and other such problems into human rights language. Thus some “human rights re-education” was necessary.

One of the most important aspects of the work of NGOs in this context was explaining how important this mechanism would be both for individual victims of ESCR violations, and also for the development of our understanding of ESCR.  Victims of ESCR violations are just as much in need of a forum to voice their grievances as any other human rights victims – ensuring governments recognize this and provide both domestic remedies, and now, an international mechanism is an important step in ending the nonsensical differential treatment of victims of ESCR on the one hand, and civil and political rights on the other.

2- What potential impact do you see the OP-ICESCR having on the ground?

The power of enabling a community or an individual to claim their rights and to make a claim to an independent tribunal if these rights have been violated is very powerful.  It helps strengthen implementation of rights as it translates claims for respect and assistance beyond the language of charity, into human rights language.  As cases are adjudicated under the Optional Protocol, the Committee will be better able to guide governments regarding how to implement their ESCR obligations.  Individuals and groups seeking justice will ensure that the domestic legal systems and their ability to deal with ESCR issues are strengthened.

3- What role can CSOs play in assisting individuals present claims to the UN or in compiling information for inquiries procedures?

Like with all Treaty Body communications procedures, NGOs and civil society play a pivotal role in the success of these mechanisms.  It is NGOs and civil society that create awareness about the existence of such mechanisms, and provide victims with the education and often the resources to file a complaint.  In some instances, NGOs can act on behalf of victims, if there is a specific reason why the victim can’t file a complaint themselves.  Often with ESCR issues, the victims involved are those facing extreme poverty or lack of education, and thus the role of NGOs becomes even more important in providing the link between the UN sitting in Geneva and the reality on the ground.  Under the Optional Protocol, there is an inquiry procedure enabling the Committee to investigate gross and systematic violations of rights – when violations reach this scale, it is often NGOs who have the broad ranging information available to spot the patterns and provide the Committee with the information it needs.  At every stage of the process, NGOs and civil society organizations can and should be involved in ensuring the mechanisms created by the Optional Protocol function well and are available and accessible to all victims of ESCR violations.

4- Can you give examples of cases where CSOs have worked with governments to move towards the progressive realization of a particular ESCR?

NGOs and CSOs work with governments every day to ensure ESCR are being progressively realized: From undertaking budgetary analysis from a human rights perspective and discussing with Ministries of Finance how to ensure rights are realized in a cost effective manner; to working with Ministries of Housing to formulate relocation plans for communities displaced by large-scale redevelopment projects; to bringing court cases about child labour with the intention of giving government the imperative needed to ensure better implementation of child labour rights … NGOs and CSOs work in a myriad of ways to help governments fulfil their obligation to progressively realize all human rights.  To cite just one of many examples, in Argentina, organizations like the Centre on Housing Rights and Evictions and Centro de Estudios Legales y Sociales (CELS) worked with other community groups on the issue of the right to water in the city of Buenos Aires.  Privatization had caused increases in the cost of water to skyrocket, sometimes up to 300% for poor communities, and due to help from CSOs the Government saw the need to reverse the privatization to better facilitate access to affordable water.  When the government was subsequently sued by the water companies for loss of earnings, NGOs supported the case for showing how the Government was acting to protect the right to water.