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FOCUS December 2003 Volume 34

Enforcing Economic, Social and Cultural Rights

OP-ICESCR NGO Coalition

Major human rights instruments have a procedure for examining complaints of unresolved violations. This system has helped human rights violations victims get redress, allowed States Parties to undertake appropriate measures to prevent the recurrence of the violations, and enriched the understanding of the rights themselves. But there is no such system under the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Thus in 1990, the United Nations Committee on Economic, Social, and Cultural Rights (Committee) started discussing the possibility of drafting an Optional Protocol to the ICESCR (OP-ICESCR) that would create this system. This was followed by the 1993 Vienna Declaration and Programme of Action that encourages the continued examination of optional protocols to the ICESCR. In 1997, the Committee submitted a 1996 draft Optional Protocol to the Commission on Human Rights for consideration.[1] In 2002, the Commission created the ICESCR/Optional Protocol Working Group with a mandate to consider options regarding the elaboration of an Optional Protocol and to make specific recommendations on the issue.[2]

1996 draft OP-ICESCR

The 1996 draft Optional Protocol enables the Committee to receive and examine written communications from any individual or group alleging violation of economic, social and cultural rights by States Parties to the Optional Protocol. The State Party concerned is confidentially informed of the complaint and requested to send its explanations on the issue and the remedy, if any, that may have been afforded. The Committee may request to visit the State Party concerned as part of its examination of the communication. If there is a finding of violation, the Committee recommends to the State Party to take specific measures to remedy the violation and to prevent its recurrence. The State Party, within six months of receiving notice of the view of the Committee, or a longer period specified by the Committee, provides the Committee with details of the measures that it has taken. The Committee may invite the State Party concerned to discuss with it the measures that the State Party has taken to give effect to its views or recommendations.

The Committee can request (prior to examination of the complaint) the State Party concerned to take interim measures to avoid irreparable harm, and offer to mediate between the complaining party and the State Party concerned to settle the issue on the basis of respect for the rights and obligations set forth in the ICESCR.

The draft Protocol also provides that the individuals or groups who can send communications to the Committee may either be the victims themselves or their representatives. It also provides that States Parties should undertake not to hinder in any way the effective exercise of the right to submit a communication and to take all steps necessary to prevent any persecution or sanctioning of any person or group submitting or seeking to submit a communication.

The need for the OP-ICESCR

There are existing complaint procedures at the international level dealing with alleged violations of economic, social and cultural rights. They include the following:

  • The Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR);
  • The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW);
  • The International Labor Organization (ILO) special procedure with respect to freedom of association;
  • The UNESCO Complaints Procedure in the field of any of the rights which fall within UNESCO's field of competence, i.e., education, science, culture and information;
  • The International Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Convention on the Protection of Migrant Workers and Members of their Families, and the Convention Against Torture (CAT).

Given their specific focus, access to these procedures is limited either by the rights covered or the qualification of victims who can lodge a complaint.

It is, for example, questionable to what extent the work of the Committee on Freedom of Association at the International Labour Organisation and the UNESCO procedures can really be defined as com-plaints procedures open to all victims of violations of human rights. As an example, the ILO procedure is only open to trade union representatives, and the scope of the rights covered by the UNESCO procedure is limited to alleged human rights violations related to education, science, culture and information.

Similarly, the scope of the economic, social and cultural rights covered by the Optional Protocol to the ICCPR is limited to issue related to freedom of association and slavery. Finally, limitations regarding a complaint under the Optional Protocol to the CEDAW... respond[s] ... to the gender ... criteria preventing ... universal[access to this procedure] .[3]

Lobby by the NGOs

NGOs fear that within the current political climate, States opposed to an OP-ICESCR may attempt to subordinate economic, social and cultural rights to civil and political rights. Australia, Canada, India, Ireland, Sweden, the United Kingdom, the United States and other States possess the political resolve to derail a process that has gradually gained momentum within the international community.

The NGOs argue for the adoption of an OP-ICESCR because it will:[4]

  1. Strengthen ESCR at the international level by allowing individuals and groups whose ESCR have been denied, at the national level, to have their claims reviewed by a treaty body;
  2. Lead to a new and more involved relation-ship between the Committee and States Parties. Scholars and NGOs have noted that one of the major constraints of the Committee, in the development of its working practices, is derived from the absence of a provision that requires State Party co-operation beyond the submission of periodic reports;
  3. Contribute to the further clarification of ESCR and State obligations under the ICESCR through the development of international jurisprudence. The experience gained from the Optional Protocol to the ICCPR confirms that a complaints mechanism contributes to the development of a more specific legal content of international norms;
  4. Contribute, through example, to the further realization of ESCR at the national level by promoting the development of domestic jurisprudence on these issues;
  5. Place ESCR on the same footing with civil and political rights in terms of their justiciability at the international level. This would be a logical consequence of the fact that these two sets of rights are universally recognized as indivisible, interrelated and interdependent.

The Working Group is scheduled to meet for its inaugural deliberations in Geneva from 23 February to 5 March 2004. The NGO coalition urges human rights organizations to join the Coalition and help lobby governments to support OP-ICESCR.

Some of the leading organizations in the OP -ICESCR NGO Coalition are Center for Housing Rights and Eviction (COHRE), FIAN-International, International Commission of Jurists (ICJ), International Women's Rights Action Watch (IWRAW) Asia Pacific, World Organisation Against Torture (OMCT) and the Social Rights Advocacy Centre.

For more information on how to join the OP -ICESCR NGO Coalition and how to endorse the NGO statement to be presented to the OP-ICESCR working group early next year, please contact: Caroline Lambert (op_icescr_group@yahoo.com)

Endnotes

1 E/CN.4/1997/105
2 The information in this paragraph are mainly drawn from "Concise Background Document on the Optional Protocol to the International Covenant on Economic, Social, and Cultural Rights"
3 Report to the Independent Expert on the Question of a draft optional protocol to the International Covenant on Economic Social and Cultural Rights - Submission by Non-Governmental Organizations, pursuant to Article 9(d) of Resolution 2002/24 of the Commission on Human Rights (April 2002).
4 Strategies Towards the Adoption of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: Request for Donor Assistance (NGO Coalition document, June 2003).


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