Celebration of the Entry into Force of the OP-ICESCR
For Members of the NGO Coalition, NGOs and grassroots groups around the world, the entry into force of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) on 5 May 2013, was cause for celebration, affirming the interdependence and indivisibility of all human rights and strengthening access to justice for violations of economic, social and cultural rights (ESCR). The UN Office of the High Commissioner for Human Rights (OHCHR) marked this historic moment through events with the Committee on Economic, Social and Cultural Rights (CESCR) in Geneva, on 6 May, attended by the NGO Coalition for the OP-ICESCR, and through events co-organized with the Group of Friends of the OP-ICESCR, the NGO Coalition for the OP-ICESCR, and ESCR-Net in New York City, on 10 May.
At the UN celebration in New York City, the High Commissioner for Human Rights Navi Pillay welcomed the entry into force of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. Noting that the Universal Declaration of Human Rights “endorsed the universality, indivisibility and equal value of all human rights for all people and its drafters wisely chose not to rank these rights in importance,” the High Commissioner emphasized, “[the] historic gap regarding the protection of economic, social and cultural rights is addressed now with the entry into force of the Optional Protocol. Victims will now be able to seek justice at the international level… It is truly a milestone in the international human rights system.” While building on legal protections and remedies at the national and regional level, the Optional Protocol will now allow for international jurisprudence to clarify ESCR obligations and “offer guidance to States Parties and national courts as they continue to devise adequate remedies for victims and to identify the root causes of grave and systematic violations.” While celebrating the first ten ratifications, the High Commissioner emphasized: “As many states as possible need to ratify this instrument…to ensure the widest possible protection of ESCR.” Finally, the High Commissioner offered the assistance of her office and called for resources to support the Committee on ESCR as it strengthened the justiciability of ESCR and considered initial communications, as well as emphasizing the important role of civil society in raising awareness of the OP-ICESCR and supporting cases to go before the Committee.
The event with the High Commissioner was attended by at least 150 States representatives, civil society Members, and representatives of different UN agencies were present. Following talks by the High Commissioner for Human Rights and the Permanent Representatives of Uruguay and Portugal, ten additional States spoke from the floor. Ecuador, Argentina, El Salvador, and Spain, among the ten States that have ratified the OP-ICESCR, called for an active Group of Friends of the OP-ICESCR in NYC, paralleling the work of their colleagues in Geneva, launched in March 2013. Finland anticipated ratification by end of May, and Belgium and France spoke of ratification by the end of 2013. Belgium, among other states, gave a particular note of thanks to the NGO Coalition for its ongoing role in advancing the OP-ICESCR. Costa Rica and Paraguay both spoke of being in the process of ratification. Brazil spoke of taking seriously Portugal's recommendation to ratify the OP during its Universal Periodic Review, forming an inter-ministerial working group to monitor human rights commitments more fully, and beginning debate and comprehensive preparation necessary prior to signature and ratification of the OP-ICESCR. Several representatives from countries in Asia, including China, were present. The event also involved a presentation by Maria Virginia Bras Gomes, Member of the Committee on ESCR, who emphasized, “The OP carries the recognition once and for all of the justiciability of ESCR,” providing a broad mandate to the Committee to consider all rights as interdependent and to examine the root causes of violations of rights.
Representing the NGO Coalition for the OP-ICESCR, Bruce Porter celebrated the entry into force but cautioned, “It is potentially one of the most important developments in human rights protections at the UN level in a generation. I say potentially because what we are celebrating this week is the creation of…a new architecture, an institutional framework through which ESCR can truly achieve equal status that is at this point primarily a blueprint for change.” Advocating collaborative work between States, UN bodies, and civil society to realize this potential, Bruce emphasized, “The true benefit of the Optional Protocol is not restricted to those who use it, it’s actually in the more inclusive paradigm of human rights that it embraces, one which gives full citizenship to those who even within our own human rights movement have not always been given the full participatory rights that they deserve.” Bruce noted that “it’s always been well-understood that a right without a remedy is no right at all,” yet ESC rights have largely been exempted from effective remedy at the international level, as well as in many national and regional jurisdictions. A quarter century of advocacy has led to this mechanism, particularly via domestic struggles for legal and constitutional protections of ESCR, and “rights must be realized from the ground up” via ongoing grassroots mobilization, public education, and collaborative rights claims to the OP-ICESCR that ensure access for poor and marginalized communities to justice. In turn, democratic government action will be also vital to implementation, and provisions for “friendly settlement” under the OP-ICESCR open the possibility of cooperatively realizing rights for all.
From left to right: Bruce Porter (NGO Coalition for OP-ICESCR), Leonardo Castilho (OHCHR), Christian Courtis (OHCHR), Maria Virginia Bras Gomes (Committee on ESCR), Maarit Kohonen Sheriff (OHCHR), Philip Alston (NYU)
After the morning session, OHCHR, the NGO Coalition to the OP-ICESCR, and ESCR-Net hosted a civil society event that was attended by over 50 persons, including several State representatives. The session began with a powerful video of groups from around the world celebrating the entry into force of the OP-ICESCR and calling for further ratifications. Presentations by Bruce Porter (Social Rights Advocacy Centre, Canada), Jackie Duggard (Social-Economic Rights Initiative, South Africa), Rebecca Brown (Center for Reproductive Rights), and Christian Courtis (OHCHR), moderated by Chris Grove (ESCR-Net) outlined the significance and implications of the OP-ICESCR. The Optional Protocol provides an impetus to governments to strengthen respect, protection and fulfillment of ESCR through domestic regulations, policies, and remedies, while providing access to justice at the international level. Communications regarding violations of rights under the ICESCR can be submitted “by or on behalf of individuals or groups of individuals,” providing redress for the human rights violations associated with impoverishment and inequality. Before determining merits or admissibility, the Committee on ESCR can request that a State party take “interim measures…to avoid possible irreparable damage to the victim or victims of the alleged violations.” In addition to the provision for friendly settlement, the OP-ICESCR provides the possibility of accessing international assistance and cooperation to address the views and recommendations of the Committee. Jackie Duggard specifically addressed the incorporation of the “reasonableness” standard, first invoked by the South African Constitutional Court in Government of the Republic of South Africa and Others v Grootboom and Others (2000). Theoretically, this standard looks to the human rights expertise of the Committee to adjudicate compliance with obligations under the ICESCR, but provides flexibility to policymakers and legislators to progressively realize rights based on maximum available resources through legislation and other measures appropriate to their context. The Committee’s application of this standard will in turn impact regional mechanisms and domestic courts. Rebecca Brown highlighted the work of members of ESCR-Net’s Women and ESCR Working Group to advance substantive equality—based on an intersectional analysis attentive to ESCR outcomes for differently positioned women—in part through simultaneous engagement with the Committee on ESCR and Committee on the Elimination of Discrimination Against Women (CEDAW). Emphasizing the importance of the Optional Protocols of both related treaties for securing access to justice and advancing relevant jurisprudence, she described the maternal mortality case of Alyne da Silva Pimentel v. Brazil (2011), which her organization helped to bring before CEDAW. Significantly, CEDAW adopted an intersectional approach, addressing factors of poverty and race, and drew on Article 12 of the ICESCR, as well as the related General Comment 14 on the Right to Health, strengthening the harmonization of international human rights law on women's ESCR. Christian Courtis closed by reminding participants of the work ahead to secure ongoing ratifications, bring strong communications before the Committee, and utilize the OP-ICESCR as an impetus to strengthen domestic remedies and policies that ensure all human rights for all people.
Toolkits on the OP-ICESCR and the new Guide: Claiming Women's ESC Rights Using OP-CEDAW and OP-ICESCR from the ESCR-Net Women and ESCR Working Group were given to all participants. On a final note, FIDH and Amnesty International, as Steering Committee members of the NGO Coalition for the OP-ICESCR and ESCR-Net members, deserve special thanks for helping to make this event possible.