Section 3: What is included under the Optional Protocol?
The OP-ICESCR includes the following procedures:
- Communications procedure;
- Inquiry procedure; and
- Inter-State complaint mechanism.
3.1 What is a communications procedure?
The communications procedure is a mechanism contained in several international conventions that gives the opportunity for an individual or group of individuals to bring a complaint, alleging violations of certain treaty rights to the body of experts set up by the treaty for quasi-judicial adjudication. In this regard, the OP-ICESCR would enable individuals to bring violations of economic, social and cultural rights contained in the Covenant to the attention of the Committee on ESCR. From this point of view, the Communications procedure can be seen as a mechanism that ensures victims of ESC rights access to justice at the international level.
In order for an individual to bring a case/communication/petition under a human rights convention, generally the following requirements have to be met (a) the alleged violating State must have ratified the convention invoked by the individual; (b) the rights allegedly violated must be covered by the convention concerned; and (c) proceedings before the relevant body may only be initiated after all domestic remedies have been exhausted or in cases in which national remedies for ESC violations do not exist.
3.2 What is an Inquiry Procedure?
In addition to a communications procedure, it was proposed that the Optional Protocol to the ICESCR have an inquiry procedure. This mechanism allows the Committee on ESCR to investigate, on the basis of reliable information received or on its own initiative, situations that appear to constitute a consistent pattern of gross or systematic violations of economic, social and cultural rights within a State party.
- Grave violations constitute severe abuses of one or more rights under the ICESCR. In this regard, the Committee, considering the facts in a particular situation, is able to determine that an investigation into a grave violation should be undertaken (e.g. a situation in which the building and development of a water dam by the government has caused forceful displacement and drowning of rural communities located in areas surrounding the project).
- The term 'systematic' refers to the scale or prevalence of violations, or to existence of scheme or policy directing violations. Systematic violations of the ICESCR would refer to patterns of violations that may result from actions or inactions by the State.
- This mechanism allows the Committee to respond in a timely fashion to serious violations taking place within a State party to the ICESCR instead of waiting until the next State report is due to be submitted. In addition, the procedure offers a means to adequately address systematic or widespread violations of economic, social and cultural rights in cases where individual complaints are not adequate to reflect the extent of the situation. It also addresses situations where individuals or groups are unable to submit communications due to practical constraints of fear or reprisals.
(Source: Website of IWRAW Asia Pacific, section on the Optional Protocol to CEDAW)
3.3. What is an Inter-State complaint mechanism?
Some human rights instruments allow States parties to initiate a procedure against another State party, which is considered not to be fulfilling its obligations under this instrument. In most cases, such a complaint may only be submitted if both the claimant and the defendant State have recognised the competence of the supervisory body to receive this type of complaint. In this case, both States have to be parties to the ICESCR and its Optional Protocol.
In practice, inter-State complaint mechanisms are seldom used. In its draft Optional Protocol, the Committee did not recommend the inclusion of an inter-State complaints procedure. In the Committee's words:
"In principle, there are good reasons to include such a procedure within the optional protocol. It would increase the options available for dealing with economic, social and cultural rights and it would put those rights on a par with those dealt with in the instruments listed above. In practice, however, there are also strong reasons that militate against the inclusion of such a procedure. Those that already exist under comparable United Nations human rights treaties have never been used and Governments have consistently been wary of what has been referred to as 'a Pandora's Box, which all parties prefer to keep shut'." (E/CN.4/1997/105 at 14.)
An analytical paper by the Chairperson Rapporteur presented at the third session of the working group ("Elements for an optional protocol to the International Covenant on Economic, Social and Cultural Rights" E/CN.4/2006/WG.23/2) states that the working group, at the time, discussing the creation of the optional protocol, may wish to consider the extent to which an inter-State procedure might be a means by which a treaty body could provide its goods offices in order to seek a friendly solution between States having made an appropriate declaration to accept such an instrument, in relation to concerns over international cooperation and assistance.
The First Draft Optional Protocol that served as the basis for negotiations includes an individual and collective communications procedure, as well as an inquiry procedure. Furthermore it encompasses a version of an interstate complaint mechanism under which every State Party to the Protocol can declare at every time that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the Covenant. Communications under this article may be received and considered only if submitted by a State Party that has made a declaration recognizing in regard to itself the competence of the Committee.