On 5 May 2013, the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR) will take effect, creating new possibilities for individuals and groups to hold State Parties accountable for violations of economic, social and cultural rights. The ICESCR enshrines a variety of rights, including the right to work (article 6), the right to social security (article 9), and the right to education (article 13). Once the Optional Protocol takes effect, the Committee on Economic, Social, and Cultural Rights (the Committee) will be empowered to receive, review, and recommend remedies for individual complaints of alleged violations; along side the Committee’s periodic evaluation of State Party reports on their progressive realization of economic, social and cultural rights.
Ratification Status of the Optional Protocol
The UN General Assembly adopted the text of the Optional Protocol in December 2008 as Resolution A/RES/63/117 and to date 42 States have signed the Optional Protocol. On 5 February 2013, Uruguay became the tenth country to deposit a formal instrument of ratification with the UN Secretary General and joined the other nine State Parties of Argentina, Bolivia, Bosnia and Herzegovina, Ecuador, El Salvador, Mongolia, Portugal, Slovakia and Spain. As provided by Article 18, the Optional Protocol will officially take effect three months from the date this tenth instrument of ratification was deposited.
Purpose of the Optional Protocol
The Optional Protocol contains three distinct mechanisms: individual communications, inter-state communications, and an inquiry process. The most anticipated of these tools will be the individual communications mechanism. Specifically, the Optional Protocol provides the Committee the ability to “receive and consider communications” from individuals on alleged ICESR violations by State Parties and then make official recommendations regarding the violations addressed in the communication. This mechanism is similar to communication procedures used by other UN treaty bodies, such as the UN Human Rights Committee, which monitors implementation of the International Covenant on Civil and Political Rights.
The inter-state communications mechanism allows for State Parties to submit complaints of ICESCR violations against fellow State Parties for arbitration by the Committee. While a tool for the enforcement of rights on paper, in practice the similar inter-state mechanisms of other UN treaty bodies have never been used by State Parties and will not likely be used in the ICESCR context.
Finally, the Optional Protocol lays out an “inquiry procedure,” by which the Committee would investigate alleged “grave or systematic” violations of the ICESCR that are brought to its attention, although only with the State’s prior consent under Article 11 of the Optional Protocol. It remains to be seen how many State Party consent to this provision for independent Committee inquiry, but similar inquiry procedures have been significant, although limited, tools for the Committee Against Torture and the Committee on the Elimination of Discrimination against Women.
Expanding the opportunities for individuals and organizations to directly address the Committee with complaints and receive formal acknowledgement will, hopefully, lead to more effective redress by State Parties. However as with treaties in general, the Optional Protocol is limited to only those countries that ratify it; the Committee will not be able to consider communications regarding countries that have not ratified the Optional Protocol.
Rules for Communications Mechanisms
In November 2012, the CESCR adopted Provisional Rules of Procedure under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. The requirements for these individual communications match the rules established for other UN treaty bodies’ communication procedures. Committee members who are members of the state addressed in the communication may not participate in examining the communication.
The rules lay out certain preliminary admissibility requirements. Communications must be in writing and may not be anonymous. Also, the Optional Protocol is not retroactive, so communications alleging a violation that occurred prior to the Optional Protocol taking effect will be deemed inadmissible. Prior to submitting a communication to the Committee, individuals must exhaust all domestic remedies, or be prepared to demonstrate that the member state’s remedies are “unreasonably prolonged.” Communications must be submitted within a year of the individual or group exhausting local remedies, unless they can establish this deadline was not possible.
After determining that a communication meets the admissibility criteria, the Committee will share it to the relevant State Party, which then has six months to provide a written response to the Committee. The Committee may at any point recommend interim protection measures by State Parties when a communication raises concern of an irreparable harm from a continuing alleged violation of rights. After a communication has been submitted, the parties of the communication also may pursue a “friendly settlement,” through confidential negotiations facilitated by a member of the Committee.
In the absence of a friendly settlement, the Committee will examine the communication, the State Party’s response, and other “relevant documentation emanating from other United Nations bodies, specialized agencies, funds, programmes and mechanisms, and other international organizations, including from regional human rights systems that may assist in the examination of the communication, provided that the Committee shall afford each party an opportunity to comment on such third party documentation or information within fixed time limits.” (Rule 14)
After considering all relevant documentation, the Committee will issue a response including the Committee’s view of the situation and any recommendation, which are transmitted to all parties to the communication. In its annual report, the Committee will publish summaries of effective friendly settlements and communications that the Committee examined, along with its recommendations.
*This article was updated following Uruguay’s deposit of its instrument of ratification.