Background Doc on op-icescr

The International Covenant on Economic, Social, and Cultural Rights (see
HR Osaka
):

By ratifying the ICESCR, States parties recognize the right of everyone to work in just and favorable conditions, to form and join trade unions, to social security, to an adequate standard of living (including food, clothing, and housing), to the highest attainable standard of health, to education, to take part to cultural life and to enjoy the benefits of scientific progress.

Under articles 16 and 17 of the Covenant, States parties undertake to submit periodic reports on the measures they have adopted and the progress made in achieving the observance of ESCR.

The body in charge of monitoring the implementation of the Covenant by States parties is the Committee on Economic, Social, and Cultural Rights. The Committee was first established in 1985, and is comprised of 18 independent experts in the field of human rights elected for 4 year terms.

Upon reception of each country progress report, the Committee reviews it, asks questions and clarifications to the State party, and finally submits its concluding observations. Even though these concluding observations do not have legally binding status, “they are indicative of the opinion of the only expert body entrusted with and capable of making such pronouncements” (Fact Sheet No. 16 published by the Office of the High Commissioner for Human Rights).

Another important function of the Committee is to generate general comments on the provisions of the Covenant. The purpose of the general comments is to assist States parties to fulfill their obligations by providing an authoritative interpretation of the Covenant’s articles.

Economic, Social, and Cultural Rights within the UN Human Rights System:

When in 1948 the General Assembly of the United Nations adopted the Universal Declaration of Human Rights (UDHR) one indivisible set of rights were identified as inalienable: civil, political, economic, social, and cultural rights.

The UDHR was then translated into two binding agreements, which split that original set of rights into two groups. These two treaties that entered into force in 1976 were the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Both instruments have been widely ratified and, together with the UDHR and the two Optional Protocols to the ICCPR, are regarded as constituting the International Bill of Human Rights.

Economic, social and cultural rights are thus supposed to be of equal status in international human rights law to civil and political rights. Yet they have historically received less attention and suffered from second-class status when it comes to mechanisms of enforcement.

The vast majority of States parties to the ICESCR has not adopted appropriate domestic legislative measures, and has not provided for judicial remedies to violations of ESCR. At the same time, victims of ESCR violations do not have the possibility of submitting formal complaints to the Committee on ESCR thus exposing Governments’ potential violations of ESCR to the international scrutiny, as the ICESCR does not allow it.

Because it is not feasible to change the ICESCR to include this procedure, the only open course of action is for the General Assembly of the United Nations to adopt a second treaty linked to the ICESCR, or Optional Protocol, that States can sign onto.

The Optional Protocol to the ICCPR:

An Optional Protocol allowing for individual complaints under the ICCPR came into force in 1976 and since them has demonstrated a number of benefits. As of December 2002, 104 States had ratified the Optional Protocol to the ICCPR.
Thanks to the individual complaint procedure, several countries have changed their laws, in a number of cases prisoners have been released and compensation paid to the victims. Moreover, a wider consensus has been achieved on the content of the obligations undertaken by the States parties to the ICCPR.
The presence of the Optional Protocol has allowed victims to obtain restitution and redress for violations of their civil and political rights and has contributed to enhance the implementation of the rights enshrined in the ICCPR.

Importance of the Proposed Optional Protocol:

Here are the reasons why the UN General Assembly should adopt an Optional Protocol to the ICESCR allowing for the individual complaints procedure:

The procedure would provide a space for victims to expose Governments’ violations of their ESCR.

It would also increase the possibility of victims to obtain redress and restitution for violations of their economic, social, and cultural rights.

It would enhance the ability of the Committee on ESCR to develop jurisprudence that would, in turn, improve the understanding of the obligations upon States parties to the ICESCR.

The procedure would give congruence to the human rights system. As of today, optional individual complaints procedures are in place for other major human rights treaties: the ICCPR; the Convention on the Elimination of All Forms of Discrimination Against Women; the International Convention on the Elimination of All Forms of Racial Discrimination; and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (an optional individual complaint’s procedure has also been envisaged for the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. The Convention will enter into force this year).

Enforceable human rights:

The provision of an Optional Protocol to the ICESCR would reaffirm that economic, social, and cultural rights are more than inspirational goals, but enforceable human rights instead.

Lastly, the existence of an international complaint procedure available to individuals would probably encourage state parties to provide similar procedures at the national level.

Summary of the Progress To Date

1990 The Committee on Economic, Social, and Cultural Rights started discussing the possibility of drafting an Optional Protocol to the ICESCR.

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1993 The World Conference on Human Rights adopted the Vienna Declaration and Programme of Action (UN document A/Conf.157/23). The Declaration reaffirmed that “all human rights are universal, indivisible and interdependent and interrelated” and went on to declare that “the international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis”.

Moreover, the document encouraged “the Commission on Human Rights, in cooperation with the Committee on Economic, Social and Cultural Rights, to continue the examination of optional protocols to the International Covenant on Economic, Social and Cultural Rights”.

1996 The Committee on ESCR finalized a draft Optional Protocol that was presented for consideration to the Commission on Human Rights in 1997 (UN document E/CN.4/1997/105). In its decision 1997/104 of 3 April 1997 the Commission on Human Rights requested the Secretary-General to transmit the text of the draft optional to Governments and intergovernmental and non-governmental organizations for their comments for submission to the Commission on Human Rights. Only a handful of Governments submitted their comments.

2001 The UN High Commissioner for Human Rights organizes, in cooperation with the International Commission of Jurists, a two-day workshop on the justiciability of ESCR with particular reference to an Optional Protocol to the ICESCR (the report on the workshop is contained in UN document E/CN.4/2001/62/Add.2). The same year the Commission on Human Rights decided to nominate an Independent Expert on the question of a draft Optional Protocol to the ICESCR (Commission on Human Rights resolution 2001/30).

2002 Mr. Kotrane, the Independent Expert, submitted his first report declaring himself in favor of the adoption of an Optional Protocol to the ICESCR (UN document E/CN.4/2002/57). The Commission on Human Rights renewed his mandate to allow him to study in greater depth the nature and the scope of States parties obligations under the ICESCR, the question of the justiciability of ESCR, and finally the question of the benefits and practicability of a complaint mechanism under the ICESCR and the issue of complementarity between different mechanisms (Commission oh Human Rights resolution 2002/24). The Commission also decided that a working group “with a view to considering options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights” would be established in 1993.

The Way Ahead:

In the upcoming session of the United Nations Commission on Human Rights (to be held in Geneva, March 17 – April 25, 2003), the Commission will establish a Working Group on the optional protocol and, most importantly, define the mandate of the Working Group.

An effective mandate would allow the Working Group to draft the Optional Protocol within a relative short timeframe (4 or 5 years). The optional protocol would
then be adopted by the UN General Assembly, and subsequently opened for signature, ratification, and accession by Member States.

There is, however, the risk that the Commission on Human Rights will mandate the Working Group just to “consider options” towards the adoption of an optional protocol to the International Covenant on ESCR. Under this scenario the Working Group would not lead to any concrete outcome.

As the Commission on Human Rights is a political body comprised by States’ representative, the chances of having a favorable outcome for the working group mandate are very slim unless NGOs pressure their Governments and let them know that it is indeed important to adopt an Optional Protocol to the ICESR.

This is a crucial moment for civil society to push the Commission forward to take the next step: the adoption of an optional protocol to the ICESCR allowing for individuals’ complaints.

Specifically, we recommend – and we urge you to join us in advocating – that the Working Group should:

- use the existing draft optional protocol adopted by the Committee on Economic, Social and Cultural Rights in 1997 as a starting point for its work;

- receive inputs – including observations, contributions and recommendations – from civil society (not only governments) functioning as an open-ended working group;

- initiate discussions and drafting of the optional protocol, rather than re-open conceptual questions which have been addressed already in numerous other fora.

links:


HR Osaka
;

escr protocol now.

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