Reclaiming and Sustaining the OP-ICESCR´s Vision: Revisiting the journey so far to keep moving forward

Reclaiming and Sustaining the OP-ICESCR´s Vision: Revisiting the journey so far to keep moving forward.

There have always been two conflicting narratives around the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) – one instrumental, the other visionary; one procedural the other substantive; one corrective and the other transformative.   

The instrumental narrative is by no means unimportant.  Other treaties, most notably the ICCPR, have had complaints procedures for many years.The ICESCR had no complaints procedure and the adoption of the OP-ICESCR brought ESC rights onto a procedural equal footing with civil and political rights.  For those who have exhausted domestic remedies to violations of ESC rights the OP provides recourse to adjudication and remedies that would otherwise be unavailable.That is important and it is a good reason for States to ratify the OP-ICESCR.

We must remember, however, that formal equality is not substantive equality.  Providing equal access to justice for social rights claimants is not as simple as providing access to the same procedure as has existed for civil and political rights claimants – at least not if the approach to adjudication and remedy remains within a civil and political rights mould. Access to substantive justice will mean that the way in which violations are identified and claims conceived, advanced, adjudicated and remedied must be transformed. That’s where the visionary dimension that we fought for during the drafting process comes in.

The transformative aspect of the OP speaks to the structural or systemic causes behind the historic exclusion of those living in poverty from access to justice.  It challenges systemic discrimination within the human rights movement itself.  It forces us to address difficult questions: Why have the fundamental issues of dignity, security, health and life of people living in poverty, hunger and homelessness been so rarely the subject of rights claims and court cases? Why have the majority of human rights organizations focused on civil and political rights and neglected socio-economic rights? Why do donors prefer to fund civil and political rights over ESC rights even when ESC rights violations are responsible for more deaths and suffering?   Why have lawyers and NGOs not brought legal claims forward in every country to demand that governments take action to address the immense suffering caused by unnecessary hunger and homelessness even if they did not believe such claims would win the first time around?   Isn’t that what was done with civil and political rights violations that were seen to be simply morally unacceptable? Why have many human rights institutions and courts decided that states must be provided a “margin of discretion” with respect to socio-economic policies that have systematically deprived poor people of their rights?  

These are the broader issues of systemic exclusion from access to substantive justice that formed the backdrop to the drafting of the OP-ICESCR by the Open Ended Working Group. They were addressed, initially, in the form of questions, usually brought by states that were unfavourable to the OP project, about justiciability and the scope of the complaints procedure. What kinds of claims can the Committee on Economic, Social and Cultural Rights competently adjudicate?  Are claims alleging violations linked to failures of progressive realization and budgetary allocation justiciable? Should the CESCR be instructed to apply a “wide margin of discretion” in assessing whether states’ socio-economic policy “choices” comply with ESC rights? 

For the most part, the NGO Coalition and supportive states answered these challenges in the manner in which they were posed, as relating to justiciability and institutional competence.   “Yes,” we insisted, “violations linked to failures to progressively realize rights have been competently adjudicated by domestic courts.  It is important, however, to ensure that a full evidentiary record is available and that amicus interventions are encouraged so as to ensure that the Committee is able to competently assess such claims.” “No, it would not be appropriate to instruct the Committee to defer to governments, ie. to one party over another in relation to socio-economic policies when these are alleged to have caused violations of ESC rights.  It is, however, important to recognize that while it is the Committee’s job to assess whether socio-economic policies comply with the Covenant,  it remains the State’s job, not the Committee’s, to design and implement the necessary policies and programs.” 

As the debates wore on, however, it became increasingly clear that the real issue behind the proposals by skeptical states to define some components of ESC rights to be “nonjusticiable” was whether or not the OP-ICESCR would be true to the vision of equal access to justice. “Justiciability” was being defined in traditional civil and political rights terms as the adjudication of claims alleging prohibited government action rather than as adjudication of whether reasonable measures have been taken to realize ESC rights when failures to do so has deprived claimants of their rights. So, for example, discrimination claims or forced evictions leading to homelessness were considered justiciable but widespread homelessness caused by socio-economic policy decisions was not.  This kind of distinction merely perpetuated the systemic exclusion of the most marginalized and impoverished members of society from access to justice – with all of the negative consequences for their place within the human rights movement that this would entail. 

In the end, all proposals to limit the scope of access to justice were rejected in favour of a “comprehensive” approach. What lay behind this historic decision was a commitment to substantive equality of access to justice for previously excluded groups.  Instead of taking as a starting point preconceived ideas about what types of claims are justiciable, based on the prevailing dominance of claims challenging state “interference” with rights, the Working Group affirmed as the starting point the principle that all victims of human rights violations must have access to justice.   If that required a reconceptualization of how claims are to be adjudicated because traditional models of adjudication did not fit, so be it. The principle of access to justice must not be compromised to protect traditional models of justiciability. The OP-ICESCR demands an over-riding commitment to enhance the capacity and responsibility of courts and human rights bodies to adjudicate new types of claims fairly and fully, in light of a full evidentiary record, through a transparent and inclusive process and developing creative approaches to engaging with governments to ensure that violations are remedied.

Patterns of systemic exclusion, however, are not overcome simply by the adoption of a visionary text.  It will take an ongoing commitment to inclusive justice that lies behind the text to really change the discriminatory patterns manifested in the differential treatment of social rights claimants within judicial systems and human rights institutions.   The CESCR will need to honour the principle of access to justice over the countervailing tendency within UN human rights institutions to cling to existing procedures. NGOs and legal advocates must also ensure that petitions challenging the failures of states to address structural violations of ESC rights are actually filed by engaging in ongoing outreach and public education among impoverished communities.  In ESCR-Net’s work to support strategic ESC rights litigation, we are discovering that these kinds of legal challenges are few and far between. Claims that conform with more traditional challenges to government action are far more prevalent than positive rights claims challenging failures to take reasonable measures to realize ESC rights.   Forced evictions and service disconnections are important violations to be addressed, of course, but it is critical to ensure that those who have no housing from which to be evicted or no services from which to be disconnected also have access to justice.

Battles for equality usually have turning points or small victories that later lead to systemic, transformative change. A single Black woman sitting at the front instead of at the back of a bus in Alabama occupies a place from which she had been barred and sets in motion historical change backed by social movements.The OP-ICESCR opens the door, but the real change must come when, by occupying the field of the interpretation of rights and the administration of justice, social rights claims begin to make the human rights movement itself more inclusive and just. 

What if, instead of looking for good legal challenges, according to prevailing approaches, we took as our starting point the  importance of advancing challenges to the most serious and widespread violations of ESC rights?   Rather than defining their role in terms of preconceived notions of what a justiciable claim looks like, what if judges and international human rights bodies focused on their responsibility to provide fair hearings and effective remedies to any violations of fundamental human rights?  And what if states ratified the OP-ICESCR en masse, not only to fill in a procedural gap, but also to affirm a transformative vision of an inclusive international human rights system? 

It is the nature of human rights practice to conjoin procedural with substantive justice, incremental advances with visionary and transformative purposes.  The OP-ICESCR has opened an entire new field of human rights practice.There is lot to do to fulfill the vision.

  By Bruce Porter*

*Bruce Porter, Director of Social Rights Advocacy Centre, is member of the Steering Committee of the NGO Coalition for the OP-ICESCR and the Strategic Litigation Working Group at the ESCR-Net

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