Section 4: What rights of the ICESCR are protected by the OP-ICESCR Procedures?
One of the main challenges for NGOs advocating for the adoption of the OP-ICESCR was to ensure that the mechanism that was adopted protects all the substantive rights set forth in the ICESCR and all obligations that arise from these rights. One of the most important issues that was debated regarding options to the elaboration of an OP-ICESCR was whether the procedures should apply to all of the rights recognized in the Covenant or only to some of them. In this regard, several options were debated:
4.1. Option 1: The OP-ICESCR Procedures should cover All Substantive Rights of the ICESCR (Arts 1-15)
In the Draft of an OP prepared by the Committee on ESCR and submitted to the Commission on Human Rights in 1996, the Committee recommended that the OP-ICESCR should apply to all of the economic, social and cultural rights set forth in the Covenant, including all of the rights contained in Articles 1 to 15 ICESCR. This option was the one which better protected ESCR. It includes the possibility to submit complaints in regard to the socio-economic aspect of the right to self-determination (Article 1) and in case of violations to the principle of non-discrimination (Articles 2.2 and 3). The NGO Coalition for an OP-ICESCR supported this option and this was the option adopted by the UN general Assembly.
4.2. Option 2: The OP-ICESCR Procedures should cover Articles 2 to 15 of the ICESCR
Another option presented by some states was to restrict the coverage of the procedure to the rights recognized in Part II and III (Articles 2 to 15) of the Covenant. This approach left aside the right to self-determination recognized in Article 1 of the ICESCR. It may be noted that the right to self-determination is recognized in exactly the same terms in Article 1 of the International Covenant on Civil and Political Rights and that it is subject to complaints under the first Optional Protocol to that Covenant. In practice, however, the Human Rights Committee (the body in charge of supervising compliance with ICCPR) adopted a cautious or restrictive approach to its application.
4.3. Option 3: à la carte approaches
Another way to restrict the reach of the OP-ICESCR was to adopt an "à la carte approach" which might have taken several different forms.
1. The "opt-out" approach would have allowed State parties to indicate which provisions of the Covenant would not be covered by the Optional Protocol.
2. The "opt-in" approach would have required states to choose which rights will fall under the scope of protection of the OP in relation to that state. So instead of starting from all the rights and "opting out" they had to have started from zero and "opt-in" the rights and obligations by which they agreed to be bound.
4.4 Option 4: Reservations to the Optional Protocol
Reservations to the Optional Protocol would have been another way of giving states the possibility to limit the Optional Protocol and its effectiveness. States could have declared that they restricted the complaints procedure to certain components of rights, such as provisions for non-discrimination, or ill-defined notions of the "minimum core content" of the rights, or "grave violations."
4.5 Option 5: Limiting the scope of the Optional Protocol to specific obligations
There were also states calling to limit the scope of the OP to certain obligations, such as the obligations to respect and protect, leaving out the obligation to fulfill. While the "tripartite" division is a useful analytical tool, in practice it is almost never possible to divide an ESCR violation into these three components. On top of that this division does not exist in the ICESCR and so the OP should not have taken a restrictive approach to ESCR complaints.
It is important to stress that any selective approach would have not only undermined the OP's potential as a tool for the full protection of ESCR, but also the UN Human Rights System as whole because this would have opened the door to unprecedented models restricting the scope of protection under complaint mechanisms. No other treaty in the UN system contains any of these limitations. The ICESCR imposes obligations to State parties of all the rights recognized in this treaty and in relation to all their elements. The OP is a procedural instrument and does not introduce new nor expand present economic, social and cultural rights obligations that States parties accepted through their ratification of the Covenant. In addition, at the domestic level, all ESCR are subject to protection through judicial means and States have the obligation to ensure that domestic legal remedies exist for their protection (for examples on ESCR adjudication at the domestic and international levels visit the ESCR-Net caselaw database).
The Optional Protocol recognizes the indivisible and interdependent relationship amongst all human rights. Any selective approach would have therefore supported discussions on the hierarchy of and inequality between economic, social and cultural rights and civil and political rights. The Optional Protocol allows for all of these possibilities. However the majority of states have, at one point or another, expressed their support for a comprehensive approach allowing for communications under any of the rights under the Covenant. One of the main challenges was to ensure that the final version of the Optional Protocol did not contain any restrictions.