Section 1: History of the OP-ICESCR Process
For many years the Committee on Economic, Social and Cultural Rights, the body of independent experts that monitors compliance to the International Covenant on Economic, Social and Cultural Rights (ICESCR), invested its time and energy in the discussion of a draft Optional Protocol. In 1997, the Committee's report on a draft optional protocol for the consideration of individual complaints to the ICESCR (Doc. E/CN.4/1997/105) was submitted to and considered by the former United Nations Commission on Human Rights (replaced by the Human Rights Council in 2006).
Over the years, there was an unsatisfactory ambiguity in the position of States on the adoption of the OP-ICESCR. In fact, in the Vienna Declaration and Programme of Action (1993) States "encourage[d] the Commission on Human Rights, in cooperation with the Committee on Economic, Social and Cultural Rights, to continue the examination of optional protocols to the International Covenant on Economic, Social and Cultural Rights" (Part II, para. 75). This commitment was reiterated by the Commission on Human Rights which, in paragraph 6 of its resolution 1994/20, took note of the "steps taken by the Committee ... for the drafting of an optional protocol ... granting the right of individuals or groups to submit communications concerning non-compliance with the Covenant, and invite[d] the Committee to report thereon to the Commission ....". However, for several years, the steps taken by States regarding the drafting of an OP to the ICESCR were few.
Nonetheless, important steps were taken in 2001 when the Commission on Human Rights decided to nominate Mr. Hatam Kotrane as an Independent Expert on the question of a draft optional protocol to the ICESCR (Commission on Human Rights Res. 2001/30). In 2002 the Independent Expert submitted his report (E/CN.4/2002/57) and the Commission renewed his mandate (Res. 2002/24). The Commission also decided to "establish... an open-ended working group ... with a view to considering options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights" In 2003, the Commission requested "the working group to meet for a period of 10 working days, ... with a view to considering options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights, in the light, inter alia, of the report of the Committee on Economic, Social and Cultural Rights to the Commission on a draft optional protocol (E/CN.4/1997/105, annex), comments and views submitted by States, intergovernmental organizations, including United Nations specialized agencies, and non-governmental organizations, and the reports of the independent expert (E/CN.4/2002/57 and E/CN.4/2003/53)" (Res. 2003/18). In 2004 the mandate of the Working Group was renewed for 2 years.
In 2006 the Human Rights Council (the body that replaced the Human Rights Commision) renewed again the mandate of the working group for two additional years. The mandate of the Working Group was modified to allow it to draft the OP-ICESCR (Res. 2006/3). The Council also requested that the Chairperson of the Working Group prepare a first draft optional protocol to be used as a basis for the negotiations. The draft was to include provisions corresponding to the various main approaches outlined in the Chairperson's analytical paper (E/CN.4/2006/WG.23/2) and take into account all views expressed during the sessions of the Working Group. At the fourth session of the Open-ended working group Catarina de Albuquerque, the Chairperson Rapporteur, presented the First Draft Optional Protocol to the ICESCR.
In 2008 the fifth and final session of the Working Group was held. It was divided into two different sessions. At the end of this the Working Group decided to transmit the agreed text of the Optional Protocol to the Human Rights Council for consideration and approval.
The Human Rights Council made a revision to the proposed text of the Optional Protocol which had left out Part I of the ICESCR. Mainly Article 2 was revised to read as follows: "Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Coven ant by that State Party."
The text was approved by the Council without a vote and finally, on December 10th 2008, the 60th Anniversary of the Universal Declaration of Human Rights, the Optional Protocol was adopted by the United Nations General Assembly.
The Optional Protocol was opened for signature and ratification or accession on September 24, 2009 during the 2009 UN Treaty Event days. The Protocol so far has been signed by: Argentina, Armenia, Azerbaijan, Belgium, Chile, Congo, Ecuador, El Salvador, Finland, Gabon, Ghana, Guatemala, Guinea-Bissau, Italy, Luxembourg, Madagascar, Mali, Mongolia, Montenegro, Netherlands, Portugal, Senegal, Slovakia, Slovenia, Solomon Islands, Spain, Timor-Leste, Togo, Ukraine and Uruguay. An updated list of signatories can be found here: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3-a&chapter=4&lang=en
1.1. Historical Milestones of the OP-ICESCR Process
1990 The Committee on Economic, Social, and Cultural Rights started discussing the possibility of drafting an Optional Protocol to the ICESCR. 1993 The World Conference on Human Rights adopted the Vienna Declaration and Programme of Action (UN document A/Conf.157/23). The Declaration reaffirmed that "all human rights are universal, indivisible and interdependent and interrelated" and went on to declare that "the international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis".
The document encouraged "the Commission on Human Rights, in cooperation with the Committee on Economic, Social and Cultural Rights, to continue the examination of optional protocols to the International Covenant on Economic, Social and Cultural Rights". 1996 The Committee on ESCR finalized a draft Optional Protocol that was presented for consideration to the Commission on Human Rights in 1997 (UN document E/CN.4/1997/105). In its decision 1997/104 of 3 April 1997 the Commission on Human Rights requested the Secretary-General to transmit the text of the draft Optional Protocol to Governments and intergovernmental and non-governmental organizations for their comments for submission to the Commission on Human Rights. Only a handful of Governments submitted their comments. 2001 The UN High Commissioner for Human Rights organizes, in cooperation with the International Commission of Jurists, a two-day workshop on the justiciability of ESCR with particular reference to an Optional Protocol to the ICESCR (the report on the workshop is contained in UN document E/CN.4/2001/62/Add.2). The same year the Commission on Human Rights decided to nominate an Independent Expert on the question of a draft Optional Protocol to the ICESCR (Commission on Human Rights Res. 2001/30). 2002 Mr. Kotrane, the Independent Expert, submitted his first report declaring himself in favor of the adoption of an Optional Protocol to the ICESCR (UN document E/CN.4/2002/57). The Commission on Human Rights renewed his mandate to allow him to study in greater depth the nature and the scope of States parties obligations under the ICESCR, the question of the justiciability of ESCR, and finally the question of the benefits and practicability of a complaint mechanism under the ICESCR and the issue of complementarity between different mechanisms (Commission on Human Rights Res. 2002/24). The Commission also decided that a working group "with a view to considering options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights" would be established. 2004 First session of the Open-ended Working Group 2005 Second session of the Open-ended Working Group 2006 Third session of the Open-ended Working Group. In addition, the mandate of the Working Group gets renewed by consensus during the first session of the Human Rights Council for a further two years so that it can now draft the OP-ICESCR. 2007 Fourth session of the Open-ended Working Group. Presentation and discussion of the first Draft Optional Protocol to the ICESCR prepared by the Chairperson-Rapporteur.
2008
Fifth and final session of the Working Group. The Optional Protocol is adopted by the Human Rights Council and in December 10, 60th Anniversary of the Universal Declaration of Human Rights by the United Nations General Assembly.
2009
The Optional Protocol was opened for signature and ratification or accession on September 24, 2009 and was signed by 29 states during the 2009 UN Treaty Event. (23-25 and 28-29 September 2009)
(Source: Information contained in Concise Background Document on the Optional Protocol to the International Covenant on Economic, Social, and Cultural Rights and in Take Action Now! Advocacy Kit, NGO Coalition for an OP-ICESCR (2004))