Using OP ICESCR to Advance Women's Human Rights

What is an OP to ICESCR (Optional Protocol to the Covenant on Economic, Social and Cultural Rights)?

An Optional Protocol enables individuals to seek justice internationally, if they have been denied access to justice domestically. It is attached to a “parent” treaty, in this case the ICESCR. It is a separate legal text which establishes a stronger mechanism for accountability, in this case, an individual complaints process (known formally as a “communications procedure”).

In the UN Human Rights Treaty System, an Optional Protocol grants the human rights Committees judicial powers. That is, through an Optional Protocol the Committee can begin to review individual complaints in a similar way to that of a traditional human rights court.

The Optional Protocol to the ICESCR includes both a communication procedure (an individual, group of individuals or a person or organisation on behalf of them, can lodge a complaint with the Committee that their ESC rights have been violated) and an inquiry procedure (enabling the Committee to investigate grave and/or systematic violations of rights in the ICESCR).

Why use OP ICESCR

One of the strengths of an Optional Protocol to the ICESCR is the potential role it could play in securing the implementation of economic, social and cultural rights in countries around the world. In particular cases, individuals who have been unable to access justice at the domestic level would be able to take their complaint to the CESCR. It would then have the authority to review the case, and determine whether any of the rights under the ICESCR had been violated. Cases decided under other Optional Protocols have changed the laws, policies and programs of governments around the world.

Another benefit of an Optional Protocol is the contribution it will make to better understanding the scope of the rights contained in the ICESCR. This combined with the work of the CESCR in reviewing country reports, and adopting general comments, will lead to a stronger base for the implementation of economic, social and cultural rights in our own communities.

It also contributes to the universality and indivisibility of human rights. At present, some governments continue to challenge the validity of economic, social and cultural rights, claiming that they are not “justiciable”, that is that there is no legal right which attaches to them. Adoption of an Optional Protocol to ICESCR would change this perception, and would finally provide equality between civil and political and economic, social and cultural rights.

How are OP ICESCR and OP CEDAW different?

OP ICESCR includes a number of new elements (vis-à-vis the OP CEDAW) including:

- 'Friendly Settlement' - provides for the parties to make a friendly settlement - a settlement will close the matter forever [Article 7].

- Inter-State Communications - includes an opt-in clause for inter-state communications [Article 10]. This is an interesting provision in light of the fact the language does not include the same restrictive language on self-determination. So feasibly a state could bring a complaint against another on self-determination issues.

- UN technical support to state party - the Committee can submit its views in a communication or inquiry (along with the state response) to UN agencies for purpose of them providing technical assistance to the State concerned. A trust fund will be established to support this.

However there were nsome heavy compromises made to the text at the last moment which have limited both its scope and accessibility. This was a disappointment for the NGO Coalition that worked hard to push for the strongest text possible. Some of the key critiques of the agreed upon text include the final draft of the Optional Protocol to ICESCR is ambiguous as to whether it is comprehensive in scope, meaning whether or not it might cover all the rights set out in the ICESCR. Article 2 states:

Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant by that State Party.

Does this include the self-determination which is principally a political right? This language was adopted to replace a framing which explicitly excluded Part 1 of the Convention ('self-determination'). The key will be in the interpretation given to it by the Committee.

- The language of 'in exceptional circumstances' was added as a condition for the Committee ordering 'interim measures' to protect the rights of victims in cases where it is necessary to avoid possible irreparable damage to the victim or victims of the alleged violations [Article 5].

- Requirement to have the consent of victim to reveal their identity to the State Party removed [Article 6].

- Appears to restrict the Committee seeking additional information from any NGO sources (limits it to UN and state information) [Article 8.3].

- Requires the Committee to consider "the reasonableness of the steps taken by the State Party in accordance with Part II of the Covenant... bear in mind that the State Party may adopt a range of possible policy measures for the implementation of the rights set forth in the Covenant" [Article 8.4].

- Inquiry procedure has an 'opt-in' rather and an 'opt-out' clause [Article 11]

Restrictive Admissibility Requirements:

- The threshold for demonstrating that all domestic remedies have been exhausted was increased from other Optional Protocols with the removal of express recognition that domestic remedies must be 'likely to bring effective relief' or else the victim does not have to exhaust that remedy [Article 3]. By contrast the OP CEDAW also explicitly recognized remedies which are 'unlikely to bring effective relief'. However through expansive interpretation by the Committee calling on precedent from other Committee's it is possible that this can be overcome.

- An additional admissibility criteria not previously found in other Optional Protocols was included which places a burden on the victim to demonstrate that have suffered a "clear disadvantage". This language may make it more difficult for women and other groups who face intersections of discrimination to demonstrate the harm they have faced.

- A strict timeframe of one year from violation to file complaints is imposed (Exception: where author can demonstrate that it has not been possible to submit the complaint in that time) [Article 3.2(a)]

- Author must show they have suffered a 'clear disadvantage' (unless 'Committee considers that the communication raises a serious issue of general importance') [Article 4].

For the text of OP ICESCR, please download here.