Section 6: Benefits of an OP-ICESCR
There are several benefits in the adoption of an Optional Protocol. Hereby we identify some of them. You could also try to identify the particular benefits for your own country. The NGO Coalition has also identified additional benefits. An OP to the ICESCR allowing individuals and groups of individuals to submit claims against violations of economic, social and cultural rights and providing for an inquiry procedure advances the principle that all human rights are universal, indivisible and interdependent. Additionally it helps overcome the common misconception that economic, social and cultural rights are not "justiciable"- that their controversies cannot be decided by a court. (See our case-law database of legal jurisprudence on economic, social and cultural rights).
As a starting point, it is important to acknowledge that the domestic implementation of the ICESCR has led to important changes in laws, policies and procedures. Proactive steps taken by NGOs, governments and other sectors have created greater awareness of the need to respect, protect, promote and realise economic, social and cultural rights. Some examples are:
- Amendments to national constitutions to include guarantees regarding economic, social and cultural rights;
- Analysis of national laws and jurisprudence in the light of State obligations under ICESCR and the need to make most aspects of economic, social and cultural rights justiciable;
- Interpretation of national laws in the spirit of the ICESCR;and
- Development of educational programmes aimed at promoting ESCR and/or publicising the ICESCR
Additionally, it is important to bear in mind the impact the OP-ICESCR will have at the national level if we take into account that the ability to submit claims at the international level for violations of economic, social and cultural rights will have a direct effect in improving the adjudication of these rights at the domestic level, thereby strengthening the protection of nationally disadvantaged groups. It is a reality that many governments will not move towards improved protection of economic, social and cultural rights unless shown the way by means of judicial or quasi-judicial examples or political pressure. More specifically, there are several ways in which a complaints procedure contributes to the implementation by States parties of the obligations under the ICESCR.
First, concrete and tangible cases will be discussed by the Committee in a framework of inquiry that is otherwise absent under the abstract discussions that arise under the State reporting procedure. Only through tangible and concrete cases do real problems confronting individuals come alive in a way that does not occur in the context of the abstract and arid discussions that arise in the context of the reporting system. Moreover, the focus on particular cases has the effect of drawing attention to personal circumstances that reveal failures and problems that are either unknown to, or avoided by, those responsible for drafting legislation or delivering programs/services.
Second, the views of a treaty monitoring body on a complaint are more specific than general comments on how provisions should be understood. In this way, the views of the Committee on ESCR contribute to clarifying the content of the obligations from the provisions of the Covenant.
Third, the mere possibility that complaints might be brought before an international forum encourages governments to ensure that more effective local remedies are made available.