Third Open-Ended Working Group to Consider Options Regarding the Elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
Geneva, 6-17 February 2006

Submission Regarding Relationship with Other Mechanisms
NGO Coalition for an Optional Protocol to the ICESCR

13 February 2006

The NGO Coalition would like to stress that an Optional Protocol to the ICESCR will be a necessary complement to the existing human rights mechanisms at the international universal) and regional levels.

The complementarity in the human rights framework is not a new issue. It results from the development of human rights law, along with the identified need to bring special protection to vulnerable groups, address particular subjects of concern or respond to regional specificities.

With respect to the OP to the ICESCR, concerns have been raised that such a mechanism may duplicate, to a certain extent, the work carried out by other human rights supervisory bodies. However, as several delegates has pointed out and we have stressed in our presentations, an Optional Protocol to the ICESCR is essential to ensure the full protection and realisation of the rights to housing, health, culture, education, food, social security, work, and other rights in the Covenant. No other mechanism at the international level provides for the breadth of coverage on economic, social and cultural rights issues (for further details see the written submission).

With regard to the proceedings before the regional systems for the protection of human rights, it is important to keep in mind that e xisting regional mechanisms do not cover Asia and the Pacific, while the Inter-American system only provides for individual communications in relation to the right to education and the right to join and form trade unions. In Europe the à la carte system does not cover all ESC rights and does not provide for individual communications.

Moreover, as said this morning, an Optional Protocol to the ICESCR would enhance the indirect protection of economic, social and cultural rights, taking into account the complexities and particularities necessary for the protection of these rights in a direct manner.

With regards to proceedings before other United Nations human rights treaty bodies, the NGO Coalition notes that they are either not concerned directly with ESC rights, and thus cannot apply the specific approach and expertise, or they are limited to addressing merely the concerns and violations related to certain affected groups (such as women). Thus, they are not adapted to the protection of ESC rights as enshrined in the ICESCR, be it for communications lodged by individuals or for communications emerging from groups.

With regard to the procedures within UNESCO or ILO, The NGO Coalition observes that the International Labour Organisation (ILO) or United Nations Educational, Scientific and Cultural Organisation (UNESCO) procedures cannot be seen as being of the same nature as a mechanism under an OP-ICESCR. The substantive areas covered by the ILO and UNESCO procedures are not concurrent with those of the ICESCR and these procedures do not provide a like form of redress for victims.

In sum, the NGO coalitions believes that the existing international and regional ESC rights complaint’s mechanisms are limited in terms of the subject matter that they are competent to adjudicate over and/or in terms of the individuals/groups competent to lodge a complaint.

Furthermore, any potential overlap between the future operation of an OP-ICESCR and other procedures, such as the existing human rights treaty bodies complaints mechanisms, regional mechanisms and the ILO or UNESCO procedures could be addressed through the well-established principle of non-duplicity. In general terms, this principle implies that it is not possible for a person to submit a simultaneous communication on the same legal basis to two or more bodies. This being said, the jurisprudence of the HRC and the IACHR recognises that a factual case can be submitted to both bodies, if separated legal and factual issues are being raised before each body. Under this approach, a victim could submit his/her case before two different procedures, only if the legal and factual issues differ.

Rather than duplicating or overlapping with existing procedures , the OP-ICESCR will come as a needed complementary procedure to other existing mechanisms. At the moment, existing procedure fail to cover all ESC rights in all regions of the world. Additionally, if an OP-ICESCR were to be adopted, it will complement the existing procedures within specialised agencies. Indeed it would deepen the existing cooperation between the CESCR and regional systems as well as the UNESCO and ILO.

This page was last updated on April 13, 2006

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