Campaign for the ratification of the OP-ICESCR at the 29th session of Human Rights Council in Geneva
Participants emphasized the importance of the OP-ICESCR in securing access to justice at multiple levels for victims of human rights violations at a side event at the UN Human Rights Council in Geneva, on 18 June 2015.
Advancing Economic, Social and Cultural Rights (ESCR): The role of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) in securing access to justice at all levels was hosted by the NGO Coalition for the OP-ICESCR in partnership with the Group of Friends of ESCR, led by the Permanent Mission of Portugal to the UN, with the support of the Missions of Uruguay, Argentina, Spain, Italy and Finland. Civil society commitment to the OP-ICESCR was clear from the number of NGOs in attendance, including representatives of Amnesty International, Community Law Centre of the University of the Western Cape, ESCR-Net, FIDH, International Commission of Jurists (ICJ), MIT Displacement Research and Action Network, and the Social Rights Advocacy Centre (SRAC). The event highlighted the milestone of the adoption and entry into force of the OP-ICESCR. Members of the Group of Friends called on other States to follow their example in ratifying the OP-ICESCR, while offering peer-to-peer support to address concerns or questions regarding ratification.
Nuno Cabral from Portugal stressed that countries often mistakenly believe that they need to change the national system or constitution before joining the OP-ICESCR. Ratifying the Optional Protocol does not create any new obligations with respect to domestic law and can be ratified through the same procedures as in the ratification of other international treaties.
Maria Virginia Bras Gomes, member of the UN Committee on Economic, Social and Cultural Rights, provided an overview of the processes followed by the Committee in considering communications under the OP-ICESCR. She identified the principle of reasonableness in the Optional Protocol, which suggests that there may be a range of options available to States for achieving compliance with their obligations of progressive realization based on the allocation of the maximum of available resources. She also highlighted that constructive dialogue with States is useful in order to assess performance and develop appropriate measures to put in place.
Ivahanna Larrosa from the NGO Coalition, coordinated by ESCR-Net, stressed that the OP-ICESCR opens up another opportunity to further understand the scope of existing State obligations to respect, promote and fulfill ESCR, as a result of being a party to the ICESCR. The entry into force OP-ICESCR corrected the systemic imbalance regarding access to justice at the international level, which existed between economic, social and cultural rights (ESCR) in comparison to civil and political rights. The OP-ICESCR provides individual and groups of individuals with a mechanism to access remedy at the international level, while offering States a platform for critical dialogue and incentive to strengthen national mechanisms and normative standards to meet their existing obligations.
Ebenezer Durojaye, from the Community Law Centre in South Africa, described the complementary work being done to advance ESCR at the African Commission and emphasized the importance of adoption of the OP-ICESCR by more African States. He expressed the hope that South Africa would soon ratify the OP-ICESCR. Sandra Ratjen, from ICJ, noted that access to effective remedies is essential to all human rights and that ratification of the OP-ICESCR is critical to making this a reality for victims of all human rights violations. Iain Byrne, from Amnesty International, emphasized that the OP-ICESCR will ensure more interactive engagement among international institutions in order to clarify the content of the ESCR and state obligations to apply the maximum of available resources.
A series of questions from the audience led to a thoughtful exchange with panelists, overcoming some concerns regarding national obstacles to ratification of the OP-ICESCR. A representative of Greece expressed interest in learning more about the progress made in countries that have already ratified the treaty. A representative of Lesotho asked whether it would make sense to ratify the OP-ICESCR, since its Constitution described ESCR as principles of state policy rather than as justiciable rights. On behalf of the NGO Coalition, Bruce Porter, from SRAC, responded to this concern, noting that countries do not need to explicitly include all ESCR as justiciable rights in their constitutions to benefit from ratifying the OP-ICESCR, and he expressed concern that common law countries so far have not ratified the OP-ICESCR. He noted the OP-ICESCR represents a more unified approach to all human rights and access to justice. When ESCR are treated as a separate category of rights, as in Canada, then courts often fail to interpret the right to life as ensuring equal protection to disadvantaged groups and positive obligations. Additionally, Miloon Kothari, from the MIT Displacement Research and Action Network and the former UN Special Rapporteur on the right to Adequate housing, noted that in India, where ESCR were also described as directive principles, courts have recognized that ESCR must be recognized as components of the right to life. He noted that all countries that have ratified the ICESCR are already obliged to implement the ESCR in domestic law.
Minister Amedeo Trambajolo, from Italy, shared that Italy’s National Action Plan related to business and human rights incorporated the OP-ICESCR in order to ensure access to remedy, particularly for workers´ rights.
All speakers reinforced the importance of access to remedy and of moving the ratification process forward in order to implement concrete actions to advance the economic, social and cultural rights. Members of the NGO Coalition stressed that they are committed to continuing to work with the Group of Friends of ESCR in engaging with States that have not yet ratified the OP-ICESCR to ensure that its full potential is realized to affect concrete changes in the lives of those whose rights have been ignored for too long.