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 the Communications Procedure
(Scope of rights subject to a procedure; Reservations)
NGO Coalition for an Optional Protocol to the ICESCR
6 February 2006

The NGO Coalition unequivocally supports that the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights should cover all the substantive rights contained in the Covenant (Articles 1-15). In this respect, we consider that other options, those which exclude some rights or some elements of rights, would not provide an effective protection to victims of violations of economic, social and cultural rights (ESC rights).

The OP-ICESCR does not create new substantive rights or obligations. It establishes complementary procedures for addressing and redressing violations of rights guaranteed in the International Covenant on Economic, Social and Cultural Rights (ICESCR). National and regional jurisprudence on ESC rights have not only highlighted that all Covenant right are justiciable, but also that all levels of States’ obligations – respect, protect and fulfill – can be subject to a complaint procedure.

Exclusions of rights or components of rights would seriously undermine the exercise of the right to a remedy for violations of human rights, which applies equally to all rights in the ICESCR, as noted in General Comment 9 of the Committee on Economic, Social and Cultural Rights (CESCR).

Excluding some rights from a complaints procedure under the Covenant would also run counter to the existing communication and complaint mechanisms created through optional protocols to other major human rights conventions. Failure to adopt a similar comprehensive approach in drafting the OP-ICESCR would make this mechanism less effective and thus would weaken its impact. Further, it would undermine the standards already established across the board in relation to complaints mechanisms attached to other human rights treaties.

Such an approach would not only endanger the perceived importance of ESC rights in comparison to other rights, but would also lead to a deprioritisation of some economic, social and cultural rights over others. A scenario where, for example, the right to education and the right to health are the only ones covered by a complaints procedure might well lead to the prioritisation of these rights to the detriment of other ESC rights.

In addition, an approach excluding some rights from the complaint procedure would also have an adverse impact for the work carried out at the national level. National courts frequently refer to international developments and international law in their deliberations and decisions. Excluding certain rights from an OP-ICESCR could imply, for national tribunals, that those ESC rights are not justiciable. Regardless of the actual practice and jurisprudence, courts might well decide, on the basis of an OP-ICESCR that does not embrace a comprehensive approach, that certain rights – i.e. those excluded from the Optional Protocol – cannot be subject to a judicial determination domestically.

This page was last updated on April 13, 2006

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