Timeline of the Campaign for the OP-ICESCR
The entry into force of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) was the result of over two decades of work by economic, social and cultural (ESC) rights advocates, including civil society, government representatives, and international experts such as members of the Committee on Economic, Social and Cultural Rights (CESCR), the former Sub-Commission on the Promotion and Protection of Human Rights (Sub-Commission) and various Special Procedure mandate holders.
This timeline sets out the significant periods and key milestones involved in this process. It also highlights the instrumental role played by the NGO Coalition for the OP-ICESCR, in terms of sustaining the momentum towards its adoption, overcoming arguments against the justiciability of ESC rights, and ensuring its content resulted in an effective mechanism in practice.
1990s – 2003: Moving Towards an OP-ICESCR
- 1990: CESCR begins discussions on the desirability of an Optional Protocol.
- 1993: The World Conference on Human Rights adopts the Vienna Declaration and Programme of Action, reaffirming that "all human rights are universal, indivisible and interdependent and interrelated” and encouraging the Commission, in cooperation with CESCR, to continue examining the possibility of an Optional Protocol.
- 1994: At the request of the Commission, CESCR begins work towards a draft Optional Protocol.
- 1997: CESCR presents a draft Optional Protocol to the Commission, subsequently transmitted to Member States, intergovernmental organisations and civil society for comment. Responses over the next three years – while few in number from States – are overwhelmingly in favor of an Optional Protocol.
2001: To progress discussions, the Commission appoints an independent expert, Professor Hatem Kotrane, to examine the question of the draft Optional Protocol.
Civil society groups and advocates committed to the development of an Optional Protocol meet in South Africa to form the NGO Coalition for the OP-ICESCR, aiming to coordinate civil society efforts at the national and international levels. They subsequently attend the meeting of the UN Human Rights Commission where they join forces with a number of international NGOs already working on this issue, including the ICJ and FIAN.
2001 – 2004: Resistance to the OP-ICESCR
The NGO Coalition and others advocate each year at the UN Commission on Human Rights for the creation of a working group to develop an Optional Protocol but encounters continued resistance. Debates focus on the justiciability of ESC rights and Coalition members attend both regional and international events convened to address this issue, including a two day workshop convened by the OHCHR and the ICJ in Geneva in 2001 and a workshop for judges and lawyers in Southeast Asia in Ulaan Bataar in 2004.
2004 – 2008: The Work of the UN Open-Ended Working Group on the OP-ICESCR
2004: The UN Open-Ended Working Group on the OP-ICESCR (Working Group) meets for the first time, with discussions dominated by a focus on the justiciability of ESC rights.
|The NGO Coalition for the OP-ICESCR participates in the process, identifying a key concern that a restrictive approach to the justiciability of ESC rights – particularly as relating to positive measures to be taken by States – would have the effect of denying access to remedy and justice for the majority of victims of ESC rights violations.|
2005: The Working Group meets for the second time and a number of states unfavorable to the OP continue to argue that obligations of progressive realization are non-justiciable. The NGO Coalition continues to advocate for a “comprehensive” approach recognizing that all components of ESC rights are justiciable, citing experiences at the domestic level.
September - High Level Expert Seminar on Economic, Social and Cultural Rights is hosted by the French Department of Foreign Affairs in Nantes, France. Significant support for an Optional Protocol and for a comprehensive approach.
February - The Working Group meets for its third session and discusses an ‘Elements Paper’ developed after its second session in 2005, focused on the main aspects of a communications procedure, potential inquiry and inter-State complaints procedures, as well as the consequences of not pursuing an Optional Protocol.
October - Lisbon Civil Society Forum on an Optional Protocol to the International Covenant on Economic Social and Cultural Rights Calouste Gulbenkian Foundation takes place in Lisbon. NGO Coalition engages with civil society organizations working in ESC rights to discuss issues of standing, remedy and standard of review. Agreement to pressure members of the Human Rights Council to expand the mandate of the Working Group to draft an OP-ICESCR.
June - The new Human Rights Council (replacing the Human Rights Commission) extends and amends the mandate of the Working Group, directing it to start negotiating the text of an Optional Protocol over a two-year timeframe.
- 2007: The Working Group meets for its fourth session and considers the Chairperson’s first draft Optional Protocol and Explanatory Memorandum, and whether – among other topics – the Optional Protocol would establish both individual and collective complaint mechanisms, whether it would include an inquiry procedure, admissibility criteria for communications, criteria to be applied in examining communications, and how the issue of international assistance and cooperation would be addressed.
September - CESCR adopts a statement to clarify the considerations it may take into account in considering, under a communications procedure, whether measures taken by States Parties in light of their obligation to take steps to the maximum of available resources are “adequate” or “reasonable”.
- 2008: The Working Group meets for its fifth session (divided into two separate week-long sessions, to allow more time for consideration and to seek government instructions) to discuss the revised draft Optional Protocol.
February (week one) – negotiations commence but delegates are unable to reach consensus on the revised draft due to conflicting approaches on key issues, including standing, scope (i.e. which rights would subject to the complaints procedure), criteria for review, reservations and international cooperation and assistance.
March/April (week two) – negotiations continue on the basis of both a second revised draft and additional drafting proposals (prepared after a series of informal consultations with Working Group delegations in Geneva following week one) addressing issues of admissibility, interim measures, criteria for review by the Committee and a new proposal for a trust fund to address the issue of international cooperation and assistance.
Following intensive efforts – a long process of debate, discussion, clarification and consensus-building – by the NGO Coalition for the OP-ICESCR and others, negotiators reject proposals for references to a margin of discretion and a deferential standard of review in relation to obligations of progressive realization. They agree instead to include a ‘reasonableness’ standard of review for assessing States’ compliance with their obligations to take steps to progressively realize ESC rights. This represents a consensus that a procedure designed to ensure access to justice for victims of violations of ESC rights must place squarely within its scope the violations of rights which emanate from States’ failures to adopt positive measures to realize rights, including, where appropriate, legislative measures and budgetary allocations.
Another key issue for the Coalition was to ensure an effective procedure to hear from third party “amicus”. When resistance was encountered to the inclusion of any specific reference to these procedures, the Coalition and supportive states pressed for the removal of any restriction of information to be considered to what was submitted “by the parties,” in order to authorize the Committee to develop a procedure for the consideration of third party submissions.
The Working Group transmits an agreed text to the Human Rights Council for approval. A number of groups and states, however, express concerns about the exclusion of article.
June - The Human Rights Council considers the draft Optional Protocol. In response to concerns raised about the exclusion of the right to self-determination from the scope of the draft, an amendment was adopted to include article 1 by referring to “any of the economic, social and cultural rights” in the Covenant.
2008 – 2013: The Adoption of the OP-ICESCR
2008: The Human Rights Council approves the text of the draft Optional Protocol as amended without a vote by its Member States.
December - The UN General Assembly adopts the OP-ICESCR, on the occasion of the 60th anniversary of the Universal Declaration of Human Rights.
The NGO Coalition for the OP launches an official campaign for ratification of the OP-ICESCR, at the ESCR-Net General Assembly in Kenya. The Coalition also commits to engaging with the Committee’s drafting of rules of procedure and to advocate for, among other things, the inclusion of a procedure to allow for third party submissions.
2009: The OP-ICESCR opens for signature and ratification, with immediate signature by 29 States.
The NGO Coalition continues its advocacy for ratification by meeting with States officials at national and international level, making Statements, building capacity among members, developing resources, etc.
In Dec 2011 NGO Coalition makes public a Declaration of Jurist and other Experts in favor of the OP-ICESCR; May 2012 it collects support together with African members and promotes the ratification of the Protocol at the ACHPR, which adopts the Resolution 223 in its 51st Session, calling all States to ratify the treaty; that same year the NGO Coalition helps to reinvigorate the Group of Friends of the OP-ICESCR as a key actor to promote ratification among peer officials.
2009-2010: OP Coalition undertakes extensive research into various options for rules of procedure, and sends submissions to the CESCR in English and Spanish, addressing issues of standing; exhaustion of domestic remedies; interim measures; the reasonableness standard and follow-up and implementation.
2013 (March): The newly established ‘Group of Friends of the OP-ICESCR’ – made up of States that have ratified the OP-ICESCR and other in the process of doing so – holds first event in Geneva, with the support of the NGO Coalition for the OP-ICESCR and OHCHR.
5 May 2013: The OP-ICESCR enters into force following submission of the 10th ratification of the instrument by Uruguay.
2014 – 2016: The Use and Impact of the OP-ICESCR
- 2014 (May): The Group of Friends of the OP-ICESCR holds event in New York, with the support of the NGO Coalition for the OP-ICESCR and OHCHR, to commemorate the first anniversary of the OP-ICESCR’s entry into force.
Gabon, Cabo Verde and Niger are the first African States to ratify the OP-ICESCR, while Finland, Belgium and Costa Rica also join the treaty that year.
- 2015: France, Italy, Luxemburg and San Marino ratify the Protocol.
September - CESCR issues its first decision under the OP-ICESCR, finding a violation of the right to housing in Spain, and making reference to a third party intervention submitted by members of ESCR-Net regarding international and comparative law.
- 2015-2016: The Group of Friends of the OP-ICESCR transitions into the ‘Group of Friends of ESCR’, with branches in Geneva and New York, to promote ESC rights through the ratification of the OP-ICESCR and more broadly, through events, the issuing of statements and fostering of discussions on ESC rights issues.
- 2016 (October): Central African Republic becomes the 22nd state party to the OP-ICESCR.
Impact and Continuing Steps Today
As at 30 March 2017, the OP-ICESCR has been ratified by 22 States and signed by an additional 26 States. Its existence is confirmation of the indivisibility and equal footing of all human rights, as it provides a mechanism at the international level of parallel nature to the complaints mechanism associated with the International Covenant on Civil and Political Rights. Through its various working groups, ESCR-Net continues to promote the ratification of the OP-ICESCR, as well as building the capacity of individuals and communities to use it effectively, secure influential jurisprudence and implementation of cases, advocate for progressive work practices by CESCR in relation to the OP-ICESCR, and connect the significance of the OP-ICESCR with a broader focus on access to justice for ESC rights violations.
For more details about the Campaign for the OP-ICESCR and resources for action visit www.escr-net.org/op-icescr.