Section 2: Improving Supervision of the ICESCR: an Optional Protocol


2.1 What is an Optional Protocol?

An optional protocol is a treaty that complements and adds to an existing human rights treaty. For this reason, only States that have already agreed to be bound by a parent treaty may choose to be parties to optional protocols.

There are only two kinds of optional protocols in the UN Human Rights Treaty System:

a) Those that address a new substantive area that has not been included in the original text of a treaty. For example the Second Optional Protocol to the International Covenant on Civil and Political Rights which considers the question of the abolition of the death penalty; and

b) Those that address procedural aspects that may affect the way a treaty operates and is enforced. For instance, by creating new compliance mechanisms as in the case of the Optional Protocol to the CEDAW Convention.

Most optional protocols establish grievance procedures by which individuals and groups of individuals can file formal complaints in cases where States have violated rights recognized in a human rights treaty. In this connection, when an optional protocol creates one or more enforcement mechanisms, the monitoring body established by the parent treaty administers these. Through complaints and inquiry procedures, the international bodies in charge of supervising the implementation of a human right treaty can elaborate on the meaning of the rights contained on this treaty and contribute to the development of international jurisprudence.

(Source: Website of IWRAW Asia Pacific (section on the Optional Protocol to CEDAW))

 2.2 Why an Optional Protocol to ICESCR?

The Optional Protocol to the ICESCR (OP-ICESCR) is a separate treaty open for signature and ratification by States that are already parties to the ICESCR. The OP-ICESCR does not create any new substantive rights. It sets a mechanism that makes it possible for individuals or groups to submit a complaint to the Committee in regard to violations of their economic, social and cultural rights by a State party. For example, a community that was wrongfully evicted by the local authorities without being able to benefit from any remedies provided by national courts would be able to file a complaint directly to the Committee on ESCR.

Unless the Optional Protocol to ICESCR is ratified and enters into force, individuals or groups of individuals cannot seek redress or obtain remedies in an international forum for violations to the economic, social and cultural rights protected in this treaty. One of the limitations of the Reporting Procedure as stated in the Covenant is that it does not enable the Committee to focus on individual victims or to make recommendations on their behalf. The OP-ICESCR provides a forum for complaint and an avenue for disadvantaged groups within societies to obtain remedies for breaches of their economic, social and cultural rights. (See Benefits to an OP-ICESCR).

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