By Nathalie Mivelaz (1)
In June 2006, members of the newly-created Human Rights Council had to decide whether or not to support the drafting of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR). This Protocol would enable victims of economic, social and cultural rights (ESC rights) violations to bring complaints at the international level. By adopting a resolution by consensus (2), the 47 member States of the Council decided to move towards the creation of such an instrument.
The elaboration of an OP-ICESCR is not a new issue. It has been on the UN agenda since 1990, when the UN Committee on Economic, Social and Cultural Rights fi rst examined this question. The Committee produced a fi rst draft Protocol in 1996 (3). Since then, the idea has gained momentum through a number of expert meetings, the increased involvement of NGOs (4), and the work of an Independent Expert of the UN Commission on Human Rights (the CHR). In addition, in 1993 a 3-year open-ended working group of the CHR (the working group) was mandated to look at options regarding the elaboration of an OP-ICESCR.
At the last meeting of this working group, in February 2006, all African and Latin American countries together with Azerbaijan, Belgium, Croatia, Finland, France, Italy, Iran, Portugal, the Russian Federation, Spain, Slovenia, Timor Leste and Turkey expressed support for the elaboration of a comprehensive OP-ICESCR. Such an OP-ICESCR would cover all rights in the Covenant and all levels of State obligation. Most of these countries were also in favour of proceeding to negotiate an Optional Protocol on the basis of a draft text to be elaborated by the working group’s Chair.
Other approaches proposed during this meeting can be divided into three categories. First, countries such as Canada and the United Kingdom supported the elaboration of an OP-ICESCR but on the basis of a working document, not a draft text. This approach keeps other options on the table, in particular the à la carte option, whereby some rights or some levels of States obligations could be left out of an international complaint procedure for ESC rights (5). Second, India, Japan, the Netherlands and South Korea, among others, stated that they needed more time to make up their minds and continued to express concerns regarding the justiciability of ESC rights and/or the additional value that an OP-ICESCR would bring in terms of ensuring the protection and realisation of ESC rights. Finally, countries like the U.S. and Australia continue to be opposed to the elaboration of an OP-ICESCR altogether.
At the Human Rights Council’s meeting, the member States reached a consensus whereby they agreed to renew the working group’s mandate to elaborate an Optional Protocol on the basis of a draft text to be presented by the working group’s Chair. This draft text will have to take into account “all views expressed during the sessions of the working group on, inter alia, the scope and application of an Optional Protocol” and include draft provisions related to the different approaches that could take this protocol.
As such, the key question today centres on the kind of Optional Protocol that will be developed during those negotiations. Amongst other things, participants will have to consider whether it is preferable to develop an à la carte Optional Protocol – thereby implying that certain ESC rights or levels of State obligations are not justiciable – rather than having no OP-ICESCR at all.
Another issue for discussion is whether having a comprehensive Optional Protocol that allows for reservations would simply mean the introduction of an à la carte approach through the backdoor. Furthermore, what kind of impact would such reservations have on the mother treaty, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the state obligations imposed by that instrument? Many states and NGOs are concerned about developing drafts based on the approach that states could chose which rights to recognize on the basis of an à la carte Optional Protocol. Indeed, such an approach would be unprecedented in the UN system. It is open to question whether such an Optional Protocol would represent a step forward or a step backwards.
It is vital to recognise that negotiations and discussions around the elaboration of an OP-ICESR do not happen in a vacuum but build upon and relate to the development of case law on ESC rights at the national and regional levels. This evolution of case law has instructed and guided the discussions on a complaints procedure for ESC rights violations at the international level. Any decision regarding the type of Optional Protocol to develop could either enhance and support these developments or else could seriously undermine them.
According to the NGO Coalition for an OP-ICESCR and many ESC rights experts, there are a number of important reasons why (a) an OP-ICESCR should include all rights enshrined in the ICESCR, as well as all levels of State obligations; and (b) no reservations should be permitted (6).
Firstly, there are no practical obstacles to the development of an Optional Protocol that would cover all the rights enshrined in the ICESCR. Justiciability is not an issue. All rights and all levels of States obligations have been adjudicated in many different countries and legal systems. The fact that the full spectrum of ESC rights cannot be adjudicated in certain countries does not relate to the nature of those rights, but is largely attributable to the fact that either such rights have not been incorporated into national law, or international treaties are not directly applicable in domestic legal proceedings. Instead of promoting more effective remedies to ESC rights, restrictions to the scope of a United Nations complaints mechanism could have an adverse impact on the enforcement of ESC rights at the national level. For instance, national Courts frequently refer to international developments and international law in their deliberations and decisions. As such, the exclusion of certain ESC rights could lead to courts deciding that those rights excluded from the Optional Protocol cannot be subject to a judicial determination domestically.
Secondly, an Optional Protocol would not create any new obligations. In fact, it would establish a complementary mechanism to the reporting procedure for addressing and redressing violations of the rights enshrined in the Covenant. As such, having an Optional Protocol covering only certain rights might affect the way States implement their obligations under the ICESCR and could lead to the prioritisation of certain rights to the detriment of others, thereby defeating the intentions of those who drafted the ICESCR.
Thirdly, a comprehensive approach is the only practical way of addressing the realities faced by the victims of ESC rights violations. For most of them, isolating one right from others, such as the right to health from the right to housing, would not only amount to a failure to recognise their experiences, but would also prevent them from obtaining full redress, reparation, and termination and non-repetition of the rights violations they suffer.
Similarly, excluding certain levels of States obligations from procedures under an Optional Protocol would have a serious impact on victims’ ability to have their case adequately considered at the international level. Although the distinction between the various levels of States obligations (respect, protect, fulfi l) is a useful analytical tool for clarifying the different dimensions of States’ obligations, it makes no practical sense from the victims’ perspective.
For example, a case of forced evictions involves the three levels of State obligations. In this instance, excluding the obligation to fulfi l from the procedures under an Optional Protocol would prevent the Committee from looking at the issue of resettlement The Covenant as a whole recognizes and embraces the complexity and inter-relatedness of all rights, and components of rights.
A comprehensive Optional Protocol, which applies to all aspects of the Covenant, in the same way that complaints mechanisms to other treaties do, will significantly enhance the understanding of ESC rights in their many dimensions and in a variety of contexts.
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(1) COHRE UN Liaison Coordinator.
(2) UN Doc. A/HRC/1/L.4**.
(3) UN Doc. E/CN.4/1997/105.
(4) NGOs working on the elaboration of an OP-ICESCR work through the NGO Coalition for an OP-ICESCR, which brings together individuals, as well as national, regional and international NGOs, in favour of such an instrument. For more information on the work of the NGO Coalition, see: http://www.escrprotocolnow.org/
(5) The NGO Coalition for an OP-ICESCR has outlined the various à la carte approaches in a written submission to the working group; http://www.escrprotocolnow.org/
(6) The NGO Coalition for an OP-ICESCR has outlined its position on a comprehensive OP-ICESCR in its written submission to the working group (see n. 5 above)
