INTRODUCTION
1.      In the paper Filling the gap. Development and economic, social and cultural rights: An NGO challenge (March 2000) is it argued that “International and regional fora offer opportunities to challenge violations of ESC rights.” (p. 21). In the same paper the following statement can be found also: “The ESC Committee is not, as yet, competent to hear individual complaints, but there is an on-going international campaign for the adoption of an Optional Protocol to the ICESCR. The Optional Protocol would contain a right of individual and group petition in cases of violations of ESC rights. The Lima and Manila seminars both identified the adoption of an Optional Protocol as an action point.” (p. 22).

 

2.      In this paper, the issue of an Optional Protocol (OP) to the International Covenant on Economic, Social and Cultural Rights (ICESCR) is further explored. In a first section, the ICESCR is briefly presented. The second session deals with the moot points concerning economic, social and cultural rights (ESC rights): are ESC rights justiciable and what are the obligations for states or other actors? In a third section, the elaboration process of an OP to the ICESCR, providing for an individual complaint mechanism is briefly outlined, as well as the draft OP presented by the Committee on Economic, Social and Cultural Rights. The fourth section is more action-oriented. It lines out the issues 11.11.11 could focus on in its lobby-work and it examines the opportunities and limits of an OP.

 

 

 

I. THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
3.      The International Covenant on Economic Social and Cultural Rights was adopted by the United Nations General Assembly in 1966, simultaneously with the International Covenant on Civil and Political Rights (ICCPR). The ICESCR entered into force on 3 January 1976 after ratification by 35 States.

 

4.      The initial idea was to draft one covenant in line with the Universal Declaration on Human Rights of 1948, containing both civil and political rights, and economic, social and cultural rights. This original intention was however thwarted by the ideological discussion on the nature of human rights between East and West in the context of the Cold War. The West basically argued that ESC rights could not be placed on the same footing as civil and political rights, as ESC rights were not legally justiciable.

 

This ideological quarrel led to the adoption of two covenants: the ICCPR, containing the so-called rights of the first generation (“blue rights” going back to the American and French Revolution in the 18^th century), and the ICESCR, containing the so-called rights of the second generation (“red rights” going back to the Mexican and Russian Revolution in the beginning of the 20^th century).

 

Being treaties, both International Covenants are legally binding for states after ratification. So far, the ICESCR has been ratified by 145, and the ICCPR by 147 states.

Rights covered by the ICESCR

·         the right to self-determination, by virtue of which peoples freely determine their political status and freely pursue their economic, social and cultural development (Article 1)

·         the equal right of men and women to the enjoyment of all economic, social and cultural rights (non-discrimination) (Article 3)

·         the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts (Article 6)

·         the right to the enjoyment of just and favourable conditions of work, which ensure (a) remuneration which provides all workers as a minimum with fair wages and equal remuneration for work of equal value, and with a decent living for themselves and their families; (b) safe and healthy working conditions; (c) equal opportunity to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; and (d) rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays (Article 7)

·         the right to form trade unions and to join the trade union of one’s choice; the rights of trade unions to establish national federations, and the right of the latter to form or join international trade-union organisations; the right of trade unions to function freely; and the right to strike (Article 8)

·         the right to social security, including social insurance (Article 9)

·         the right to maternity leave; the protection of children and young persons from economic and social exploitation, and the prohibition of child labour (Article 10)

·         the right to an adequate standard of living for oneself and one’s family, including adequate food, clothing and housing, and to the continuous improvement of living conditions (Article 11)

·         the right to the enjoyment of the highest attainable standard of physical and mental health (Article 12)

·         (a) the right to education: primary education compulsory and available free to all; secondary education generally available and accessible to all; higher education equally accessible to all; (b) freedom of parents to choose schools other than those established by the public authorities; freedom to establish and direct educational institutions (Article 13)

·         the right to take part in cultural life, to enjoy the benefits of scientific progress and the right of the author to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production (Article 15).

 

All are individual rights, except for the first one, namely the right to self-determination, which is a right of peoples.

1.      Notwithstanding their equal recognition de jure, the ICCPR and the ICESCR have been treated differently de facto from the beginning. The differential treatment is most obvious in the weaker means of monitoring under the ICESCR.

 

Under the ICCPR, the Human Rights Committee, composed of independent experts, was immediately set up to supervise the Covenant. The Human Rights Committee can monitor state compliance with the Covenant in three different ways: through mandatory periodic reporting by State Parties (Article 40 ICCPR), through an optional interstate complaint procedure and a friendly settlement procedure (Articles 41-42 ICCPR), and through an individual complaint procedure (1966 Optional Protocol).

 

2.      No independent supervisory body was created under the ICESCR: the formal supervisory body is the Economic and Social Council of the UN (ECOSOC), which is a political body (Article 16 ICESCR). After years of ineffective monitoring by a politically composed Working Group, a committee of independent experts was established in 1985 by an ECOSOC resolution: the Committee on Economic, Social and Cultural Rights.[1] It held its first session in 1987.

 

Furthermore, only one monitoring mechanism is provided for, namely the submission of reports by states (Article 16 ICESCR). Since 1988, states are expected to report every five years on the entire Covenant in one single and comprehensive report. Neither an inter-state nor an individual complaint procedure is currently available. However, discussion on the establishment of an individual complaint procedure through the adoption of an OP to the ICESCR has taken place since the early ’90s. The issue of an Optional Protocol will be dealt with more extensively in section III, but first we turn to some of the moot points regarding ESC rights.

 

 

I. MOOT POINTS CONCERNING ESC RIGHTS: JUSTICIABILITY - OBLIGATIONS
3.      The current discussion on an OP to the ICESCR, providing for an individual complaint procedure, is fraught with largely the same ideological prejudices as those with regard to the legal nature of ESC rights. In other words, the opposition against an individual complaint procedure is informed by basically the same arguments as the opposition against ESC rights was and still is. As a consequence, the hurdles to overcome are far and foremost of a political, not of a philosophical or legal nature. On the other hand, although the challenge is predominantly to make the political climate more favourable and to generate a political will to take ESC rights forward, in the debate use is often made of legal arguments. Therefore, development in legal doctrine and clarification of legal issues may help to counter certain political arguments.

 

4.      The opposition to an individual complaint procedure seems to be really informed by the fear - seldom explicitly mentioned - of imposing uncontrollable financial burdens upon the States, and is intrinsically linked with the international political conflict, first between East and West, now between North and South (see ARAMBULO 1999, p. 97).

 

 

A. NATURE AND JUSTICIABILITY
5.      The arguments invoked against an individual complaint procedure revolve around the nature of ESC rights (are they human rights or not?) and their alleged non-justiciability.

 

Justiciability has been defined as “a right’s amenability to be subjected to the scrutiny of a court of law or another judicial or quasi-judicial entity” (ARAMBULO 1999, p. 55). It is therefore considered to be a fluid concept: its meaning depends on the interpretation of the right concerned by the court or another supervisory body. The expression “enforceability” is sometimes used as a synonym, and sometimes used with a different meaning. There seems to be a tendency however to attribute to the phrase “enforceability” a wider meaning, including the actual implementation or effectuation of a (quasi-)judicial decision.

 

6.      In what follows, the main arguments against ESC rights are briefly mentioned. Each time, elements for rebuttal of the argument are provided for.

 

Argument 1: ESC rights are not human rights

7.      There is still a rather widespread conviction that ESC rights are simply not human rights. Only civil and political rights are considered to be real human rights (based on the right to life, freedom and property), as the individual holds a central position in these rights. On the contrary, ESC rights are judged to be merely policy guidelines or even utopian aspirations, but not (legal) rights for individuals.

8.      Counter-arguments refer to the fact that the ICESCR and the ICCPR alike are legally binding instruments, so that ESC rights are as much human rights as civil and political rights are. It has been argued also time and again that the protection and preservation of human dignity relate as much to ESC rights, such as the right to an adequate standard of living and the right to food for example, as to civil and political rights, such as the freedom from torture or the freedom of expression.

 

Argument 2: ESC rights are not legal rights

9.      Sometimes it is argued that ESC rights might be moral rights, but that they are not legal rights, as they are not justiciable in international law.

10.  This position can be refuted by arguing that the lack of justiciability of ESC rights is caused by political reasons, not by reasons of international law. Moreover, human rights do not derive their quality of human rights from their justiciability: the “absence of remedies may weaken the real enjoyment of rights but does not derogate them from their quality as rights.” (HENKIN 1981, p. 270).

 

Argument 3: ESC rights are a different type of rights

11. It is often claimed that ESC rights are relative rights and that they have a variable content. Moreover, as their realisation would require positive action and resources, implying that their implementation cost would be much higher than the one for civil and political rights, it is often submitted that their realisation can only take place progressively.

 

Civil and political rights on the other hand are said to be absolute and fundamental, and considered to have an invariable content. They are believed to entail basically negative obligations.

 

This argument has i.a. been invoked by Sweden in its comment on the draft Optional Protocol.

 

12. The above argument is countered by the fact that civil and political rights too require positive action. “The reality is that the full realization of civil and political rights is heavily dependent both on the availability of resources and the development of the necessary societal structures.” (ALSTON & QUINN 1987, p. 172). The example often given refers to the right to a fair trial, which requires e.g. establishing and maintaining a functioning judicial system or an adequate penitentiary system. Moreover, the European Court of Human Rights has clarified a number of positive obligations for states flowing from the (civil and political) rights under the European Convention. In other words, the difference between the two sets of rights is more a matter of degree of required positive action for the realisation of the rights concerned than a difference in nature.

 

Argument 4: ESC rights are vague norms

13. The most legally technical argument is that ESC rights are vague norms, containing only vague obligations for states. That normative vagueness would imply a considerable margin of appreciation for the state concerned, and would render the justiciability of ESC rights unlikely and inopportune.

 

This argument has been invoked i.a. by Canada in its comment on the draft Optional Protocol.

 

14. In order to counter this argument of normative vagueness, attention can be drawn in the first place to the considerable efforts made by scholars and the Committee on Economic, Social and Cultural Rights to clarify the content of ESC rights and the obligations they entail:

·       the content of certain rights, i.a. the right to food, the right to education, the right to adequate housing, the right to the highest attainable standard of health, has been elaborated on in academic studies, reports of independent experts and General Comments of the Committee.

·       the minimum threshold approach aims at establishing a “bottom-line” beneath which concrete compliance by a State with a human right may not fall. The minimum threshold is a relative, that is to say a national or regional, benchmark, meant to help formulate the policy guidelines for the measures a state needs to take in order to comply with its obligations under the ICESCR. The Committee has introduced a similar concept in its General Comment no. 3, namely “the minimum core obligation”, being the obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights (§ 10).

·       the determination of a minimum core content purports to reveal that element or part of a human right that serves as the justification for its existence. The minimum core content is the essence and core substance of a right, without which that right and its fulfilment or enjoyment would have no meaning, and which may therefore not be violated. For that reason, it is a general and universal minimum standard.

·       a typology of state obligations has been developed: a right may contain obligations to respect, protect and fulfil (see further no. 30 and following).

·       A detailed list of violations of ESC rights through acts of commission or omission has been established.[2]

 

15. In the second place, it has been argued repeatedly that an individual complaint procedure may precisely help to clarify the meaning and obligations of ESC rights.

 

16. In sum, although there is not yet full doctrinal consensus on the nature of ESC rights and their justiciability, there seems to be growing academic interest in the elaboration of ESC rights and increasing recognition of at least a degree of justiciability. The theoretical point of departure lies in the 1948 consensus (as it appears from the Universal Declaration on Human Rights, which contains ESC rights as well as civil and political rights) on the indivisibility and interdependence of all human rights. The indivisibility and interdependence of all human rights was confirmed by the Vienna World Conference on Human Rights in 1993. Moreover, one can question “the extent to which the concept of economic, social and cultural rights can and should be artificially moulded so as to fit a predetermined conception of rights which by definition has been tailored to reflect the perceived characteristics of civil and political rights.” (ALSTON & QUINN 1987, p. 160).

 

Reference to the national and regional recognition of ESC rights as human rights and of their justiciability on these levels may add strength to the case for an individual complaint procedure. First of all, in a number of states constitutional recognition of economic, social and cultural rights can be found. Secondly, it can be pointed out that the possibility of submitting complaints on the violation of ESC rights is neither new nor innovative as it exists already on the national and regional level. Within the Council of Europe, an OP to the European Social Charter allows for collective complaints. Within the Inter-American System, the San Salvador Protocol allows for the submission of individual complaints to the Inter-American Commission and

Inter-American Court

with regard to trade union and association rights, and the right to education.

 

Reference can also be made to the adoption of the OP to the Convention on the Elimination of Discrimination against Women (CEDAW) in 1999 (which entered into force on 22 December 2000). This protocol allows for an individual complaint procedure for all the rights set forth in the CEDAW, civil and political rights as well as economic and cultural rights. The issue of justiciability was debated only in the beginning of the discussions by Governments, and became a non-issue ultimately.

 

In addition, well-developed arguments are available to rebut the classical opposition against ESC rights and an individual complaint procedure (see higher). Therefore, It cannot be argued that there exists insurmountable legal obstacles to an individual complaint procedure. At the end of a workshop on the justiciability of ESC rights held in February 2001, it was correctly concluded once more that the main obstacle to the adoption of an OP was political.

 

 

B. OBLIGATIONS
17. A second important and politically sensitive issue, closely related to the question of justiciability, is the obligations that ensue from the ICESCR.

 

Article 2 ICESCR reads: “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”

 

18. In what follows, the different elements of this article will be examined. For the interpretation of article 2, use is made predominantly of the interpretation given by the Committee in its General Comment no. 3 (The nature of States parties obligations, 14 December 1990),[3] and by the Limburg Principles.[4]

 

19. First, the general obligation for domestic states flowing from the ICESCR is one “to take steps”. The obligation to take steps is a looser one than the obligation to “ensure” referred to in the ICCPR.

 

The obligation to take steps has been qualified as an obligation of conduct. The obligation of conduct points to a specific obligation, i.e. a behaviour the state should follow or abstain from. “The obligation of conduct requires action reasonably calculated to realise the enjoyment of a particular right.” (Maastricht Guidelines, § 7). The obligation of result on the other hand is a broad obligation, which allows for a discretionary margin for states how to achieve the result. It is less concerned with the way in which results are avoided or achieved, and more with the results the state should avoid or achieve (EIDE, 1989, 42). “The obligation of result requires States to achieve specific targets to satisfy a detailed substantive standard.” (Maastricht Guidelines, § 7).

 

However, it has been stressed that the undertaking to take steps is of immediate application (Limburg Principle no. 16; General Comment no. 3, §§ 1-2).

20. Secondly, article 2 states that a state has to act by all appropriate means. From the text, it not deducible that incorporation into national law, legislation or the provision of judicial remedies is required.

 

The Committee has clarified however in the first place that “in many instances legislation is highly desirable and in some cases may even be indispensable” (General Comment no. 3, § 3). Limburg Principle no. 18 asserts without reservation that legislative action is required if existing legislation is in violation of the obligations assumed.

 

Secondly, the Committee has argued that legislation is not sufficient: the adoption of administrative, economic, financial, educational and social measures, the establishment of action programs, the creation of appropriate bodies and the establishment of (judicial) procedures may equally be necessary (General Comment no. 3, § 4).

 

21. Thirdly, the requirement of “progressive achievement” reflects the inevitably contingent nature of state obligations due to the dependence on the availability of resources. It holds the recognition of the fact that full realisation of all economic, social and cultural rights will generally not be able to be achieved in a short period of time (General Comment no. 3, § 9).

 

This requirement should however not be interpreted as implying for States the right to deter indefinitely efforts to ensure full realisation (Limburg Principle no. 21); it imposes an obligation to move as expeditiously and effectively as possible towards the goal of full realisation of the rights in question.

 

Moreover, according to Limburg Principle no. 22, the obligation of progressive development exists independently of the increase in resources; it requires effective use of resources available.

 

Finally, any deliberately retrogressive measures require the most careful consideration and need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources (General Comment no. 3, § 9).

 

22. Fourthly, “to the maximum of its available resources” indicates that the level of a country’s economic development basically determines the level of its obligations. At the same time, it is accepted that the word “its” refers to both internal and external resources (Limburg Principle no. 26; General Comment no. 3, § 13).

 

It has however been indicated that there exists a bottom-line, beneath which a state cannot go, irrespective of the level of its economic development.

 

The Committee has clarified that there is a “minimum core obligation” incumbent on each state to ensure the satisfaction of, at the very least, the minimum essential levels of each of the rights. Furthermore, “in order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations. […] [E]ven where the available resources are demonstrably inadequate, the obligation remains for a State party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances.” (General Comment no. 3, § 10-11).

 

The Limburg Principles add two focuses of attention. In the first place, attention should be paid to the equitable and effective use of and access to the available resources. Secondly, in the use of the available resources, due priority should be given to the realisation of ESC rights, keeping in mind the need to assure to everyone the satisfaction of subsistence requirements and the provision of essential services (Limburg Principles nos. 27-28).

 

The Committee has also emphasised that severe resource constraints cannot serve as an excuse not to take any measures for the weakest groups in society. “[E]ven in times of severe resources constraints whether caused by a process of adjustment, of economic recession, or by other factors the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes.” (General Comment no. 3, § 12).

 

23. Apart from the above discussed umbrella article on the obligations of states, more specific obligations can be found in the different articles. This necessitates a detailed examination of the obligations relating to each separate right in the ICESCR. It is very useful in that respect to use a typology of state obligations.

 

24.  One such typology can be found in the ICESCR itself. It distinguishes between obligations to respect, to recognise and to ensure/guarantee. The obligation to respect is the lowest level of obligation, but the one capable of immediate implementation. The obligation to recognise is believed to trigger the application of the general state obligations mentioned in article 2. The obligation to ensure/guarantee is a stronger kind of obligation, which is moreover to be implemented immediately.

 

25.  Another typology, which was initially developed by the Special Rapporteur Eide in the context of the right to adequate food, but which is nowadays rather wide-spread and often used for all ESC rights and even for all human rights, distinguishes obligations to respect, to protect and to fulfil (see also the Maastricht Guidelines, § 6).

 

The obligation to respect requires the state “to abstain from doing anything that violates the integrity of the individual or infringes on her or his freedom, including the freedom to use the material resources available to that individual in the way she or he finds best to satisfy the basic needs.” (EIDE 1989, p. 41-42). Specifically for ESC rights, states must at this primary level “respect the freedom of the individuals to take the necessary actions and use the necessary resources – alone or in association with others.” (EIDE 1989, p. 43).

 

The obligation to protect requires from the state “the measures necessary to prevent other individuals or groups from violating the integrity, freedom of action, or other human rights of the individual – including the infringement of his material resources.” (EIDE 1989, p. 42). As far as ESC rights are concerned, states are required at a secondary level to protect the freedom of action and the use of resources against other subjects (EIDE, 1989, p. 44).

 

“The obligation to fulfil requires the state to take the measures necessary to ensure for each person within its jurisdiction opportunities to obtain satisfaction of those needs, recognized in the human rights instruments, which cannot be secured by personal efforts.” (EIDE 1989, p. 42). Specifically for the right to food, the obligation to fulfil, at the tertiary level, implies both assistance in order to provide opportunities and direct provisions of food or resources which can be used for food when no other possibility exists, due to e.g. unemployment, disadvantage or age, sudden crisis or disaster, or marginalisation (EIDE 1989, p. 44).

 

26. In sum, it can be concluded that the obligations ensuing from the ICESCR may be sometimes vague, but that a considerable effort has been made in doctrine and by the Committee to clarify them. This leads to the conclusion that “the application of some rights can be made justiciable immediately while other rights can become justiciable over time” (Limburg Principle no. 8).

 

27. The question arises whether apart from obligations for the domestic state, article 2 ICESCR includes also international obligations for State parties, as it mentions that states undertake to take steps “individually and through international assistance and co-operation, especially economic and technical”. In articles 11 (the right to an adequate standard of living and to the continuous improvement of living conditions), 22 and 23 mention is made again of international co-operation and international measures.

 

28. Although during the drafting process it was recognised that developing states would require some form of international assistance, no consensus was reached on the degree of responsibility for developed countries that would entail. Therefore, from the travaux préparatoires it cannot be deduced that the commitment to international co-operation would imply a legally binding obligation upon any particular state to provide any particular form of assistance (ALSTON & QUINN 1987, p. 191).

 

29.  The Limburg Principles state in the first place that international co-operation should be focusing on the realisation of ESC rights: “[I]nternational co-operation and assistance pursuant to the Charter of the United Nations (arts. 55 and 56) and the Covenant shall have in view as a matter of priority the realization of all human rights and fundamental freedoms, economic, social and cultural as well as civil and political.” (Principle no. 29) “International co-operation and assistance must be directed towards the establishment of a social and international order in which the rights and freedoms set forth in the Covenant can be fully realized […].” (Principle no. 30).

 

30. Secondly, the Committee has stressed that “international cooperation for development and thus for the realization of economic, social and cultural rights is an obligation of all States. It is particularly incumbent upon those States which are in a position to assist others in this regard.” (General Comment no. 3, § 14).

 

The Netherlands Advisory Committee on Human Rights and Foreign Policy has taken an even firmer stance by stating that the UN Charter based principles combined with the articles 2, 11, 22 and 23 of the ICESCR can be interpreted to imply the existence of an obligation to provide international aid when another state is no longer capable of independently realising the absolute minimum norms of economic, social and cultural rights (Netherlands Advisory Committee on Human Rights and Foreign Policy, 1994, p. 9).

 

31. It should be stressed however that the industrialised countries in particular have been very reluctant up till now to accept any strong, legally binding obligation to provide aid for the realisation of ESC rights in countries of the South. It has nevertheless been suggested that inter-state complaints could be a step forward on this issue (LECKIE 1988, p. 249). We will turn to this suggestion in the fourth section.

 

II. AN OPTIONAL PROTOCOL TO THE ICESCR
A. BRIEF HISTORY AND STATE-OF-THE-ART
32. From 1990 till 1996, the Committee on Economic, Social and Cultural Rights discussed the desirability and modalities of an individual complaint procedure by way of an Optional Protocol to the ICESCR.[5]

 

In 1993, on the occasion of the Vienna World Conference on Human Rights, the Committee submitted an analytical paper, in which a detailed study of the Optional Protocol was included.

 

In 1996, consensus was reached within the Committee on the need for an individual complaint procedure, and a draft OP was finalised and submitted to the UN Commission on Human Rights.

 

33. Within the UN Commission on Human Rights, which is the political body within the UN in charge of human rights issues, the draft OP met with little enthusiasm and with a lack of political consensus. For three consecutive years, the Commission did little more than calling for comments from states, UN and intergovernmental organisations and NGO’s; it did not take any decision on the matter.

 

From these consultations it appeared that NGO’s were strongly in favour of an OP (although there seems to be much difference in opinion among them on the modalities thereof), and that a majority of states was probably not very interested in the matter, as most member states never submitted any comments. Among those few states that did, most were in favour of an optional protocol (i.e. Croatia, Cyprus, Czech Republic, Ecuador, Finland, Georgia, Germany, Lebanon, Lithuania, Mauritius, Mexico, Norway and Portugal). Canada and Sweden expressed doubts on the desirability of an optional protocol.

 

34. In April 2001, some progress was made however. The Commission on Human Rights decided unanimously to appoint an independent expert “to examine the question of a draft optional protocol to the International Covenant on Economic, Social and Cultural Rights in the light, inter alia, of the text [submitted by the Committee on ESC rights], the comments made in that regard by States, intergovernmental organizations and non-governmental organizations, as well as the report of the workshop on the justiciability of economic, social and cultural rights, with particular reference to the draft optional protocol to the International Covenant on Economic, Social and Cultural Rights […].” (E/CN.4/RES/2001/30, § 8 (c)).

 

This decision seems to reflect on the one hand a certain readiness to go ahead with the OP, and on the other hand the awareness that an OP still meets with considerable resistance from a number of states. The appointment of an independent expert is probably to be situated somewhere in between the different options spelt out by the High Commissioner for Human Rights, namely the call for additional comments (as a rather passive attitude, further exploring the opinions of states and NGO’s), the establishment of a working group, or the immediate discussion and adoption in the Commission (as a more active approach, taking more or less for granted that the issue is ready for final discussion and decision). The OP to the ICESCR does not seem ready yet for final discussion, but has already passed the stage of exploratory rounds of consultation.

 

35. In sum, although some progress has been made in recent years, it takes all in all a long time to overcome the political opposition against an OP to the ICESCR, which is often based on the “legal” argument of non-justiciability.

 

 

B. THE DRAFT OPTIONAL PROTOCOL SUBMITTED BY THE COMMITTEE
36. Although the wording of the 2001 Resolution of the Commission on Human Rights (see no. 43) suggests that the draft OP submitted by the Committee on ESC rights will not serve as the (only) basis for further discussion, that draft has nonetheless been the central focus for discussion so far. Therefore, the draft OP submitted by the Committee on ESC rights will be succinctly analysed in what follows (text in annex).

 

The following issues will be dealt with i.a.: the complainants, the range of rights covered, receivability and admissibility requirements, the examination procedure, the possibility of requesting interim measures and of the recommendation of remedies, and the possibility of follow-up.

 

Who can complain?

37. In the draft OP, the option is taken to provide for only one kind of procedure, i.e. the individual complaint procedure. The inclusion of an inter-state complaint procedure and/or of an inquiry procedure has not been recommended. The phrase “individual complaint procedure” indicates that it is not an inter-State procedure; in other words, it does not necessarily exclude groups from submitting complaints.

 

38. Locus standi, that is the right to submit a complaint, is accorded to individuals and groups who allege to have been victims of a violation (“victim requirement”).

 

Individuals and groups can also complain on behalf of alleged victims (article 2, § 1). It is understood, although not explicitly mentioned in the text, that acting on behalf of alleged victims should take place with the knowledge and agreement of the alleged victims.

 

Protection of access to the procedure is guaranteed by the undertaking of states not to hinder in any way the effective exercise of the right to submit a complaint, and to take all necessary steps to prevent any sanctioning of a person or group seeking to submit or submitting a communication (article 2, § 2).

 

To whom?

39. The Committee is the body which complaints could be submitted to (article 1). This option is justified by referring to the considerable expertise in the field of ESC rights the Committee has built up.

 

About what?

40. Complaints can be submitted for violations of any of the substantive rights protected by the ICESCR (articles 1-15).[6]

 

Option is thus made for an inclusive or comprehensive approach, making it possible to complain about any of the substantive rights covered by the ICESCR. This comprehensive approach makes the OP more progressive than the regional complaint mechanisms for ESC rights, which may explain why the Committee did not manage to reach consensus on this issue.[7] In the Inter-American system, complaints can only be lodged concerning trade union rights and the right to education. Under the European Social Charter, states can decide à la carte upon ratification which rights can be complained of.

 

The Committee has made one qualification as far as the right to self-determination in article 1 ICESCR is concerned. Communications relating to that right can only be submitted in so far as economic, social and cultural rights dimensions of that right are involved.

 

In the draft, consequent use is made of the “violation”-terminology. In requiring a “violation”, the draft prevents states from being exposed to a successful complaint solely by virtue of their failure to ensure to a specific complainant the full realisation of a right.

 

Against whom?

41.  Complaints can only be submitted against a state the jurisdiction of which the complainants are subjected to (article 1). This provision aims at guaranteeing a territorial connection between the complainant and the state.

 

A complaint is only possible against a state that is a party to the protocol (article 3, § 1).

 

Receivability and admissibility requirements

42. Communications are not receivable if anonymous or directed at a state that is not a party to the protocol (Article 3, § 1).

 

43. In a number of cases, communications are to be declared inadmissible: if there is no prima facie evidence of a violation; if they constitute an abuse of the right to submit a communication; if they concern acts or omissions which occurred before the entry into force of the Protocol (except when there is a continuing violation or when there are continuing effects which constitute a violation in themselves); if domestic remedies have not been exhausted; and if there exists a duplication of procedures, except when the other procedure is unreasonably prolonged.

 

Examination procedure

44. As far as the substantiation of a complaint is concerned, the onus to provide information is placed on the complainant (Article 4, § 1).

 

45. The Committee can request interim measures from the state concerned if a preliminary study gives rise to a reasonable apprehension that the alleged violations could lead to irreparable harm (Article 5). Interim measures are measures that can be requested from a state before the determination on the merits, in potentially serious cases in order to avoid irreparable harm or to preserve the status quo for example.

 

46. If a communication is admissible, it is brought confidentially to the attention of the state concerned. Within 6 months, the state must submit to the Committee explanations or statements, and the remedy that has possibly been afforded to the victim (article 6).

 

During the examination of the communication, the parties have the possibility of reaching a friendly settlement, which the Committee can contribute to by acting as a facilitator (article 6, § 3).

 

Apart from the information made available by the author of the communication and by the state concerned, the Committee can also take into account information from other sources for the examination of the complaint. The Committee can also visit the territory of the state concerned if that state agrees.

 

The complaint is examined in closed meetings. At the end of the examination views are adopted by the Committee, which are transmitted to the state concerned and the author of the communication, together with recommendations. The views are made public at the same time (article 7).

 

Remedies and follow-up

47. If the Committee concludes that a violation has occurred, it can recommend specific measures to remedy the violation and to prevent its recurrence.

 

The state concerned has to inform the Committee within 6 months or such longer period as may be specified by the Committee, of the measures taken pursuant to the recommendations of the Committee (article 8).

 

48. The Committee can follow up its recommendations by inviting a state to discuss the measures taken at a mutually convenient time. It can also invite a state to include in its report (to be submitted every 5 years under the reporting procedure, see higher no. 6) details of the measures taken in response to the Committee’s views and recommendations (article 9).

 

Entry into force

49. The OP would enter into force three months after the fifth ratification (Article 13).

 

Territorial scope

50. The OP would be binding upon each state party in respect of all territories subject to its jurisdiction (article 14).

 

III. POSSIBLE GUIDLEINES FOR ACTION
A. MOOT POINTS
51. In what follows, some of the important political moot points are examined. An attempt is made to clarify each time the issue at stake and to suggest the position 1.11.11 could take, thereby referring where possible and appropriate to positions taken on the issue by states and NGO’s.[8] As far as the suggestion is concerned with regard to the position that could be taken by 11.11.11, it is sometimes formulated in terms of a range of options, running from a minimalist (rather pragmatic) to a maximalist (rather principled) one.

 

It has to be realised that the more principled and progressive the position taken is, the less acceptable it often becomes politically. For that reason, a trade-off between the ideally thinkable and politically most feasible solution may sometimes have to be made, and a more pragmatic stance to be taken.

 

The position of 11.11.11 on an issue may also be informed by a basic option to be taken on the issue of an OP more generally. If the speedy negotiation and adoption is considered to be of the highest priority, one may have to give in on modalities. If certain modalities are considered absolutely essential, it may take more time to arrive at the stage of adopting a protocol.

 

Finally, attention may also be paid to the position taken by other like-minded NGO’s lobbying for an OP to the ICESCR, in order to co-ordinate and streamline positions as much as possible.

 

Terminology

52. In the draft OP, a “violations” terminology is consistently used throughout the text.

 

53.  The issue at stake is whether to use hard (“violation”) or soft (“unsatisfactory fulfilment”) language in relation to non-observance of the ICESCR.

 

The argument in favour of hard language refers to the similarity with the ICCPR. As ESC rights are no lesser rights than civil and political rights, the same terminology can and should be used for both categories of rights. Moreover, the violation terminology is believed to be more effective in terms of mobilisation of shame.

 

A possible drawback of the violation terminology is that it may give the impression to set a higher standard for complaints. As a consequence, potential cases of non-observance (though not amounting to a violation) may prove impossible to complain of. The option for a violation approach is then inspired by the notion of progressive realisation of ESC rights, which would not justify complaints about unsatisfactory fulfilment, but only about severe cases of non-observance that can be labelled violations. In this respect, the violation approach is sometimes considered as a more restrictive and more prudent approach than the unsatisfactory fulfilment approach.

 

54. Although soft language has occasionally been argued for by states because of the “different character” of ESC rights, most countries and NGO’s seem to accept the violation approach taken in the draft OP. The Centre on Housing Rights and Evictions for example has explicitly argued for the use of the same language as for civil and political rights.

 

55. The option for a violation terminology is important because of the parallelism with the ICESCR. Although some years ago the violation approach (the so-called hard language) was expected to meet with more political resistance, some countries at least seem to consider it now as a more restrictive and prudent approach. This possible change in perspective might encourage 11.11.11 to argue for both hard cases of violations and softer cases of unsatisfactory fulfilment to be justiciable.

 

Kind of procedure

56. The draft OP comprises only an individual complaint procedure.

 

57. Apart from the individual complaint procedure, two other complaint procedures can be found in international human rights instruments: the inter-state procedure and the inquiry procedure.

 

The inter-state procedure allows a state to complain about the alleged non-compliance by another state. Both states have to be a party to the same instrument under which the complaint is lodged. The inter-state procedure is i.a. provided for in the ICCPR, but is generally considered politically too strong and too sensitive to abuse, and therefore hardly used.

 

The inquiry procedure allows a supervisory body to scrutinise, either on the basis of a complaint or on its own initiative, situations that amount to a consistent pattern of gross and systematic violations of human rights.

 

58. During the 2001 Workshop on justiciability of ESC rights, expert participants suggested that the international dimensions of ESC rights such as international co-operation and the responsibility of other states could be appropriately addressed by inter-state mechanisms (§ 34). An inter-state procedure might allow states i.a. to complain about violations of ESC rights within or carried out by other states, as well as about the lack of international co-operation for the realisation of ESC rights.

 

The American Association of Jurists has suggested that the capacity of states to submit communications should not only cover complaints of violations in another state, but also the violations committed in their own territory by another state or by a transnational enterprise with its headquarters in another state.

 

59. In addition to an individual complaint procedure, an inter-state procedure and an inquiry procedure might be considered. The inter-state procedure may look attractive to lobby for, as it allows to address politically highly sensitive issues like international co-operation and the responsibility of third states, but much political resistance is to be expected. In allowing for the examination of patterns or practices of serious violations of ESC rights, the inquiry procedure could equally complement an individual complaint procedure in a meaningful way. Considerable political opposition is to be expected as well however.

 

 

Locus standi in the context of an individual complaint procedure

60. In the draft OP, locus standi is granted to individuals and groups who allege to be victims of a violation of the ICESCR. Individuals and groups can also complain on behalf of alleged victims.

 

61. A range of options is available on the issue of standing. The most liberal one is to allow individuals, groups and organisations to lodge a complaint. A much more restrictive and more usual one as far as ESC rights are concerned would be to allow only for collective complaints, and only from certain categories of groups or organisations (see the option taken under ILO-procedures and the European Social Charter).

 

A second issue is whether or not to retain the victim requirement. The victim requirement implies that a complaint can only be lodged if there is a nexus between the complainant and the alleged violation. Dropping the victim requirement opens up the procedure for every possible issue of relevance on the one hand, but also for ill-informed or gratuitous complaints on the other hand.

 

A related issue is whether representation of alleged victims by third parties should be provided for. Representation allows bringing to the attention of the Committee violations of ESC rights of individuals or groups who are unable themselves to complain thereof. A related issue is whether representation can only with the knowledge and agreement of the victims, or whether an actio popularis (this is the submission of a communication without any specific mandate from the alleged victims) should be provided for.

 

62. The most progressive position consists of arguing for very liberal rules of locus standi, allowing individuals, groups and organisations to complain as victims themselves or on behalf of alleged victims. In a minimalist approach, standing is only granted to a restrictive list of groups (as under the European Social Charter). A possible advantage of choosing for the minimalist approach may be that the victim requirement and the requirement of exhaustion of domestic remedies are dropped, as is the case under the European Social Charter.

 

There is no clear-cut answer to the question whether an actio popularis is preferable. The American Association of Jurists has argued in favour of it, submitting that an actio popularis is essential if the most vulnerable groups of the population which have very often no access to information on international procedures, are to be protected. On the other hand, the representation of groups without any mandate has inevitably paternalistic undertones. Moreover, it is clear that the actio popularis meets with fierce political resistance, even from states in favour of an OP. In sum, where there is a strong case for arguing in favour of the possibility of representation, it is much less clear whether representation should be possible without the knowledge and consent of the alleged victims.

 

Against whom

63. In the draft OP, only complainants who fall within the jurisdiction of a state can lodge a complaint against that state. Furthermore, it is required that that state is a party to the OP.

 

64. From the interpretation given to a similar provision in the OP to the ICCPR by the Human Rights Committee it can be deduced that the clause should not be interpreted literally, excluding for example the actions of the organs of a state on foreign territory. The requirement of jurisdiction rather refers to the relationship between the complainant and the state, particularly during the period of the alleged violation, regardless of the nationality of the individual. This implies that in special circumstances individuals can be subject to the jurisdiction of a state, even if they are outside the territory of the state.

 

65. The American Association of Jurists has argued for the withdrawal of the words “subject to its jurisdiction” in article 1 of the draft OP, in order to allow the establishment of responsibility of third parties for violations of ESC rights, i.a. in case of the imposition of structural adjustment programmes by international financial institutions, or the financial and trade policies of certain states or transnational enterprises. According to this NGO, it is a general principle of international law that individuals should be admitted to bring their complaints before an international body if their rights are violated by any state, legal entity or individual, and not only by the state with jurisdiction over the complainant.

 

66.  It does not seem very likely that states would be prepared to drop the (territorial or personal) jurisdiction requirement, although that would allow a complainant to lodge a complaint against any state party violating its ESC rights. It can be assumed however that the Committee on ESC rights would take the same liberal stance on the issue as the Human Rights Committee has done.

 

It may even be far less likely that a complaint against international financial organisations or transnational enterprises is acceptable. That does not necessarily imply that other actors than the domestic state cannot be held accountable at all. In an indirect way, they can to a certain extent. In the Maastricht Guidelines on Violations of ESC rights, it has been submitted that the obligations of a state to protect ESC rights includes first, the state’s responsibility to ensure that private entities or individuals, including transnational corporations over which they exercise jurisdiction, do not deprive individuals of their ESC rights, and secondly, extends also to their participation in international organisations, where they act collectively (§ 18 and 19).

 

Range of rights covered

67. The draft OP takes a comprehensive approach ratione materiae, allowing for complaints on all the substantive rights covered by the ICESCR.

 

68. There are at least four options available with regard to the scope ratione materiae:

·         All provisions, whether containing substantive rights or not;

·         All substantive rights (articles 1-15);

·         An a priori selection of a number of rights, with the possibility of progressive extension (this is the option taken under the San Salvador Protocol);

·         An à la carte selection by the states upon ratification, indicating for which rights a complaint is possible (opt in) or excluded (opt out) (this is the option taken under the European Social Charter).

 

69. The option to make the complaint procedure applicable to all provisions (like the American Association of Jurists would like to go for, making it also possible to complain about the non-fulfilment of reporting obligations) is likely to meet with serious political resistance, even from states in favour of an OP. As far as the option taken in the draft OP is concerned, some states oppose the idea to allow for complaints on the right to self-determination. Other states have indicated that, although they are not opposed to the present draft text, an à la carte approach would be acceptable for them if that would render the OP in general acceptable to more states. 11.11.11 might nevertheless consider to argue in favour of a comprehensive approach, including all material rights.

 

Other issues

70. In what follows, a number of more technical issues, which are nevertheless important from an NGO and action perspective, is shortly mentioned.

 

71. Several NGO’s would like to see the protection of complainants to be worded in a stronger terminology. In the same vein, it has been submitted that the identity of the complainant should only be revealed to the state concerned with permission of the complainant. Although a very important issue from an action perspective in order to prevent possible reprisals from the state concerned, the suggestion is likely to meet with political resistance, even from states in favour of an OP.

 

72. The draft OP allows for the admissibility of complaints on violations that have taken place prior to the entry into force of the Protocol, if these violations or their effects are continuing. This provision is most probably inspired by the problems encountered by the Human Rights Committee. It would therefore be beneficial if the provision relating to continuing violations or continuing effects could be maintained.

 

73. As far as the admissibility requirement concerning duplication of procedures is concerned, the draft OP allows for duplication if the other procedure is “unreasonably prolonged”. Some states generally in favour of an OP have expressed reservations on this provision.

 

74. The admissibility requirement of the exhaustion of domestic remedies may need further reflection in at least two respects. First, qualifications may need to be added so as to allow the Committee a certain margin of appreciation. Secondly, the question can be raised whether the requirement is suitable in cases of collective complaints.

 

75. The draft OP allows the Committee to get information from other sources than the parties during the examination of a complaint. Notwithstanding opposition by some states, it might be useful to retain this provision, as it allows NGO’s to contribute to shaping the views of the Committee on the issue concerned.

 

76.  The draft OP provides for the possibility of interim measures, but imposes the condition that “a preliminary study gives rise to a reasonable apprehension that the allegations, if substantiated, could lead to irreparable harm.” Two suggestions have been formulated: first, to drop the condition of a preliminary study, as the request of interim measures is an urgent action procedure; secondly, to add to the justification ground of the prevention of irreparable harm a second one, aiming at preserving the status quo. Both suggestions might considerably strengthen the practical relevance of interim measures.

 

77. The draft OP grants the Committee the possibility to recommend specific measures to remedy the violation and to prevent it recurrence. Although no mention is made of orders for compensation or reparation, thus limiting the Committee to decisions of a more advisory and general nature, the provision in the draft OP already is progressive compared to other complaint procedures.

 

It might be considered to argue for the possibility for the Committee to formulate recommendations also if no violation is concluded to, as the Dutch section of the International Commission of Jurists has suggested. The suggestion of the American Association of Jurists to foresee the possibility for the Committee to order compensation or reparation, thus allowing for binding remedial decisions and making it a judicial procedure, is most likely to meet with fierce political opposition.

 

 

B. LIMITS AND OPPORTUNITIES
78. In what follows, some limits and opportunities of an OP to the ICESCR are outlined in order to allow for an informed assessment of the relevance and importance of an OP for people in the South and their partners in the North.

 

79. A number of limitations of an OP has been pointed out. Some characterise an OP per se, other are more directly concerned with the suggested OP.

·         First of all, an OP is strictly optional. It is only applicable to those state parties that specifically agree to be bound by it. Moreover, it is only after ratification (not yet after signature) of a treaty that it enters into force for the state concerned.

·         Secondly, domestic remedies are to be exhausted before a complaint can be lodged with the Committee. Even if certain nuances are excepted or if a liberal interpretation is given to this requirement by the Committee, it would rarely be possible to take a case directly to the international level (the Committee). The requirement of exhaustion of remedies may prove to be a real obstacle for taking up cases against non-democratic states, as it requires to take up a case first at the national level.

·         Thirdly, the Committee would only be able to take non-binding decisions (“views”). The state party concerned would retain the final decision as to what has to be done in response to any views adopted by the Committee. Therefore, an international complaint procedure may primarily serve the cause of mobilisation of shame.

·         Fourthly, it is unclear yet which outcome can be expected from a complaint procedure to the ICESCR, as the content of the rights and of the obligations for states will be clarified only progressively in an authoritative way by the Committee, when dealing with complaints.

·         Fifthly, the outcome of a complaint procedure may sometimes prove to be only marginally beneficial to the complainants or those on behalf of whom a complaint was lodged. As Arambulo has put it: “Influencing national legislation and policy positively is the function most effectively served by an individual complaint procedure” (ARAMBULO 1999, p. 179).

·         Sixthly, it is rather unlikely that it will be possible to lodge a complaint against third states, let alone multinational enterprises. Therefore, it remains to be seen whether a complaint procedure will provide real opportunities to tackle fully the challenges posed by economic globalisation and liberalisation.

 

80. An optional protocol to the ICESCR, providing for a complaint procedure, has also a number of possible advantages.

·         First of all, it might help forward tremendously the case of ESC rights in general. The establishment of a quasi-judicial complaint procedure at the international level, comparable to the Human Rights Committee for the ICCPR, would add further evidence to the proclaimed equality of ESC rights and civil and political rights.

·         Secondly, it would entail the recognition on a practical level of the justiciability of ESC rights.

·         Thirdly, it would enhance the supervision of the ICESCR and strengthen the international accountability of states for ESC rights. This might encourage states to take ESC rights seriously, and may add pressure in concrete cases.

·         Fourthly, an international complaint procedure for ESC rights would offer the opportunity to build up a collection of relevant case-law, in which the justiciability and the content of the rights and duties are further clarified.

·         Fifthly, under certain circumstances, it might provide a remedy for the complainant for the wrongs suffered.

·         Sixthly, it may provide at least partially an answer to the need to protect ESC rights more effectively against the politics of liberalisation. ESC rights risk suffering most from liberalisation and globalisation. It is believed that an international complaint procedure might contribute favourably for example to the clarification of the conflicting international obligations of a state (international trade obligations versus international human rights obligations). Such a procedure may also prove to be an important safeguard against liberalisation, as retrogressive measures are considered to be per se violations. A number of measures sometimes encouraged by forces of globalisation, trade rules, free market proponents may thus be hold unacceptable from an ESC rights perspective.

 

 

IV. CONCLUSION
81. An OP to the ICESC rights cannot and will not be the solution to all problems. Nevertheless, it would definitely be a step forward in the protection of ESC rights. So, while it is really worth lobbying for it, one should realistically assess the opportunities it offers.

 

82. The principle remaining obstacle to the adoption of an OP is political resistance. Therefore, the challenge is not in the first place a legal one, but a political one.

 

83.  The political bodies within the UN appear to be rather sceptical about the acceptability of an OP to the ICESCR. A number of states is opposed or rather reluctant. On the other hand, some progress has been made during this year’s session of the Commission on Human Rights (2001), as after several years of indecision, the decision was taken to appoint an independent expert.

 

84. Moreover, a number of NGO’s has built up expertise and experience in lobbying for an OP to the ICESCR, for example in the run-up to the Vienna World Conference on Human Rights in 1993 and the Kopenhagen Social Summit in 1995. As the OP is high on the agenda of both human rights NGO’s and the like (e.g. American Association of Jurists, International Commission of Jurists) and development NGO’s (e.g. FIAN), it goes without saying that alliances and co-ordination with other NGO’s is preferable.

 

85. Lobbying for an OP should best go hand in hand with (1) efforts both to encourage or improve supervision mechanisms for ESC rights on national and regional levels, (2) with complementary action like the introduction of shadow reports under the reporting procedure, and (3) with drawing the attention to the need to strengthen the Committee in order to enable it to supervise the ICESCR in the best possible way.

 

SELECTED BIOGRAPHY
ALSTON & QUINN, G., “The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights”, Human Rights Quarterly 1987, 156-229.

ARAMBULO, K., Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights: Theoretical and Procedural Aspects, Antwerpen, Intersentia, 1999, 449 p.

BENOIT, A., COTTENIE, J., DE FEYTER, K., VERLEYEN, H., Filling the gap. Development and economic, social and cultural rights: An NGO challenge, Brussels, NCOS, March 2000.

EIDE, A., “Realization of Social and Economic Rights.  The Minimum Threshold Approach”, International Commission of Jurists The Review 1989, afl. 43, 40-52.

HENKIN, L., “International Human Rights and Rights in the United States” in J.R. PENNOCK & J.W. CHAPMAN (eds.), Human Rights (NOMOS XXIII) Yearbook of the American Society for Political and Legal Philosophy, New York, University Press, 1981, 257-280.

LECKIE, S., “The Inter-State Complaint Procedure in International Human Rights Law: Hopeful Prospects or Wishful Thinking?”, Human Rights Quarterly 1988, -.

NETHERLANDS ADVISORY COMMITTEE ON HUMAN RIGHTS AND FOREIGN POLICY, Economic, Social and Cultural Human Rights, Advisory Report no. 18, The Hague, 1994.

 

UN-DOCUMENTS

Question of the realization in all countries of the economic, social and cultural rights contained in the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights, and study of special problems which the developing countries face in their efforts to achieve these human rights, Commission on Human Rights Resolution 2001/30, E/CN.4/RES/2001/30

Report on the workshop on the justiciability of economic, social and cultural rights, with particular reference to the draft optional protocol to the International Covenant on Economic, Social and Cultural Rights, E/CN.4/2001/62/Add. 2

The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, E/C.12/2000/13

The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, E/C.12/2000/13

Draft optional protocol to the International Covenant on Economic, Social and Cultural Rights, E/CN.4/1997/105

The nature of States parties obligations (Art. 2, par. 1): 14/12/90. CESCR General Comment 3 

 

ANNEX
Text of the draft Optional Protocol as suggested by the Committee on Economic, Social and Cultural Rights (see E/CN.4/1997/105).

 

The States Parties to the present Protocol,

 

[a] Emphasizing that social justice and development, including the realization of economic, social and cultural rights, are essential elements in the construction of a just and equitable national and international order,

 

[b] Recalling that the Vienna Declaration and Programme of Action recognized that 'all human rights are universal, indivisible and interdependent and interrelated',

 

[c] Emphasizing the role of the Economic and Social Council, and through it the Committee on Economic, Social and Cultural Rights (hereinafter referred to as the Committee) in developing a better understanding of the International Covenant on Economic, Social and Cultural Rights (hereinafter referred to as the Covenant) and in promoting the realization of the rights recognized therein,

 

[d] Recalling the provision of article 2 (1) of the Covenant pursuant to which 'Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures’,

 

[e] Noting that the possibility for the subjects of economic, social and cultural rights to submit complaints of alleged violations of those rights is a necessary means of recourse to guarantee the full enjoyment of the rights,

 

[f] Considering that, in order further to achieve the purposes of the Covenant and the implementation of its provisions, it is

appropriate to enable the Committee to receive and examine, in accordance with the provisions of this Protocol,

communications alleging violations of the Covenant,

 

"Have agreed as follows: ....

 

Article 1

A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee to receive and examine communications from any individuals or groups subject to its jurisdiction in accordance with the provisions of this Protocol.

 

Article 2

1. Any individual or group claiming to be a victim of a violation by the State party concerned of any of the economic, social or cultural rights recognized in the Covenant, or any individual or group acting on behalf of such claimant(s), may submit a written communication to the Committee for examination.

 

2. States Parties to this Protocol undertake not to hinder in any way the effective exercise of the right to submit a communication and to take all steps necessary to prevent any persecution or sanctioning of any person or group submitting or seeking to submit a communication under this Protocol.

 

Article 3

1. No communication shall be received by the Committee if it is anonymous or is directed at a State which is not a party to this Protocol.

 

2. The Committee shall declare a communication inadmissible if it:

 

(a) does not contain allegations which, if substantiated, would constitute a violation of rights recognized in the Covenant;

 

(b) constitutes an abuse of the right to submit a communication; or

 

(c) relates to acts and omissions which occurred before the entry into force of this Protocol for the State Party concerned, unless those acts or omissions:

 

(i) continue to constitute a violation of the Covenant after the entry into force of the Protocol for that State party; or

 

(ii) have effects which continue beyond the entry into force of this Protocol and those effects themselves appear to constitute a violation of a right recognized in the Covenant.

 

3. The Committee shall not declare a communication admissible unless it has ascertained:

 

(a) that all available domestic remedies have been exhausted; and

 

(b) that a communication submitted by or on behalf of the alleged victim which raises essentially the same issues of fact and law is not being examined under another procedure of international investigation or settlement. The Committee may, however, examine such a communication where the procedure of international investigation or settlement is unreasonably prolonged.

 

Article 4

1. The Committee may decline to continue to examine a communication if the author, after being given a reasonable opportunity to do so, fails to provide information which would sufficiently substantiate the allegations contained in the communication.

 

2. The Committee may, upon the request of the author of the complaint, recommence examination of a communication which it has declared inadmissible under article 3 if the circumstances which led to its decision have changed.

 

Article 5

If at any time after the receipt of a communication, and before a determination on the merits has been reached, a preliminary study gives rise to a reasonable apprehension that the allegations, if substantiated, could lead to irreparable harm, the Committee may request the State Party concerned to take such interim measures as may be necessary to avoid such irreparable harm.

 

Article 6

1. Unless the Committee considers that a communication should be declared inadmissible without reference to the State party concerned, the Committee shall confidentially bring to the attention of the State party any communication referred to it under this Protocol.

 

2. Within six months, the receiving State shall submit to the Committee explanations or statements and the remedy, if any, that may have been afforded by that State.

 

3. During its examination of a communication, the Committee shall place itself at the disposal of the parties concerned with a view to facilitating settlement of the matter on the basis of respect for the rights and obligations set forth in the Covenant.

 

4. If a settlement is reached, the Committee shall prepare a report containing a statement of the facts and of the solution reached.

 

Article 7

1. The Committee shall examine communications received under this Protocol in the light of all information made available to it by or on behalf of the author in accordance with paragraph 2, and by the State party concerned. The Committee may also take into account information obtained from other sources, provided that this information is transmitted to the parties concerned for comment.

 

2. The Committee may adopt such procedures as will enable it to ascertain the facts and to assess the extent to which the State party concerned has fulfilled its obligations under the Covenant.

 

3. As part of its examination of a communication, the Committee may, with the agreement of the State Party concerned, visit the territory of that State Party.

 

4. The Committee shall hold closed meetings when examining communications under this Protocol.

 

5. After examining a communication, the Committee shall adopt its views on the claims made in the communication and shall transmit these to the State party and to the author, together with any recommendations it considers appropriate. The views shall be made public at the same time.

 

Article 8

1. Where the Committee is of the view that a State Party has violated its obligations under the Covenant, the Committee may recommend that the State Party take specific measures to remedy the violation and to prevent its recurrence.

 

2. The State Party concerned shall, within six months of receiving notice of the decision of the Committee under paragraph 1, or such longer period as may be specified by the Committee, provide the Committee with details of the measures which it has taken in accordance with paragraph 1 above.

 

Article 9

1. The Committee may invite a State Party to discuss with it, at a mutually convenient time, the measures which the State Party has taken to give effect to the views or recommendations of the Committee.

 

2. The Committee may invite the State Party concerned to include in its reports under article 17 of the Covenant details of any measures taken in response to the Committee's views and recommendations.

 

3. The Committee shall include in its annual report an account of the substance of the communication and its examination of the matter, a summary of the explanations and statements of the State Party concerned, of its own views and recommendations, and the response of the State Party concerned to those views and recommendations.

 

Article 10

The Committee may make rules of procedure prescribing the procedure to be followed when it is exercising the functions conferred on it by this Protocol."

 

Article 11

1. The Committee shall meet for such period as is necessary to carry out its functions under this Protocol.

 

2. The Secretary-General of the United Nations shall provide the Committee with the necessary staff, facilities and finances for the performance of its functions under this Protocol, and in particular shall ensure that expert legal advice is available to the Committee for this purpose.

 

Article 12

1. This Protocol is open for signature by any State Party to the Covenant.

 

2. This Protocol is subject to ratification or accession by any State Party to the Covenant. Instruments of ratification or accession shall be deposited with the Secretary-General of the United Nations.

 

Article 13

1. This Protocol shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the fifth instrument of ratification or accession.

 

2. For each State ratifying this Protocol or acceding to it after its entry into force, this Protocol shall enter into force three months after the date of the deposit of its own instrument of ratification or accession.

 

Article 14

1. This Protocol will be binding upon each State Party in respect of all territories subject to its jurisdiction.

 

2. The provisions of this Protocol shall extend to all parts of federal States without any limitations or exceptions.

 

Article 15

1. Any State Party to this Protocol may propose an amendment and file it with the Secretary-General of the United Nations.

The Secretary-General shall thereupon communicate any proposed amendments to the States Parties to this Protocol with the request that they notify him or her whether they favour a conference of State Parties for the purpose of considering and voting upon the proposal. If within four months from the date of such communication at least one third of the States Parties favour such a conference, the Secretary-General shall convene such a conference under the auspices of the United Nations. Any amendment adopted by majority of the State parties present and voting at the conference shall be submitted to the General Assembly of the United Nations for approval.

 

2. Amendments shall come into force when they have been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of the States Parties to this Protocol in accordance with their respective constitutional processes.

 

3. When amendments come into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of this Protocol and any earlier amendment which they have accepted.

 

Article 16

1. Any State Party may denounce this Protocol at any time by written notification addressed to the Secretary-General of the United Nations.

Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.

 

2. Denunciations shall be without prejudice to the continued application of the provisions of the present Protocol to any communication submitted under article

 

3. Following the date at which the denunciation of a State Party becomes effective, the Committee shall not commence consideration of any new matters regarding that State.

 

Article 17

This Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.