On 10 December 2008, the UN General Assembly adopted the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. This article introduces this new international complaints and inquiry procedure with a particular focus on its historical evolution, debates over justiciability, its provisions and some of the key interpretive issues that are likely to arise in practice. The article also introduces the other articles in this Special Issue and notes the likely way ahead on ratification of the protocol.
*I would like to sincerely thank the two reviewers, Catarina de Albuquerque and Claire Mahon for their very useful comments. In addition, Tara Smith was most helpful in the organising of a seminar on 6 October 2008 at the University of Oslo: The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: Local and Global Perspectives on Norway’s Position. A number of the presentations at the seminar led to the articles in this Issue. Khulekani Moyo also kindly assisted in helping to edit many of the articles.
Keywords: United Nations, International Covenant on Economic Social and Cultural Rights, justiciability, complaint and inquiry procedure, admissibility and merits.
There is a growing appreciation of the need for mechanisms to ensure greater protection for human rights, and the Optional Protocol to the International Covenant on Economic, Social and cultrual Rights provides some hope if it can translated into a utility that is real and accessible to those that need it the most. This article considers the merit in adopting the Optional Protocol, the contribution of the South African judicial experience of enforcing and understanding social, economic and cultural rights and raises a few practical points which will hopefully strengthen, by some small measure, the supervisory capacity of the Committee tasked with handling the complaints.
Keywords: Optional Protocol, ICESCR, UN Committee on Economic, Social and Cultural Rights, South Africa, justiciability, human dignity.
Reviewing the background debates and the drafting process behind the inclusion of a reasonableness standard in the Optional Protocol, this article argues that the reasonableness review that is contemplated in Article 8(4) must be guided by the right to effective adjudication and remedies for all ESC rights claimants. The drafting history shows that proposals for providing for an automatic “broad margin of discretion” in these cases or requiring a finding of “unreasonableness” were rejected in order to hold fast to the principle of adjudication that is inclusive of the claims of the most disadvantaged individuals and groups. The Article does recognize, however, that effective adjudication presupposes a recognition of institutional limits and appropriate roles. Ensuring access to effective remedies for claimants challenging the “entitlement system failures” leading to poverty and homelessness will require innovative approaches and remedial options that draw on and enhance the capacities of various actors, including adjudicative bodies, governments, claimant groups and human rights institutions.
Keywords: Effective remedies, reasonableness, margin of discretion, poverty, justiciability of ESC rights.
This article discusses the possibility of employing the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights to bring claims involving the alleged violation of extra-territorial obligations of economic, social and cultural rights. Although the Optional Protocol explicitly restricts the making of individual complaints to those within a State’s jurisdiction, it does not eliminate the possibility of extra-territorial complaints under either the inter-state complaint or, particularly, the inquiry procedures. In some cases, individuals could also bring claims if they could demonstrate that the effective jurisdiction of a State party extended beyond its borders.
Keywords: Extra-territorial obligations, jurisdiction, Optional Protocol, economic, social and cultural rights.
Proponents and opponents of ratification of the ICESCR’s Optional Protocol have both exaggerated the consequences of giving individuals a “private right of standing” before the Committee on Economic Social and Cultural Rights. But this article argues that, on balance, ratification should be encouraged. Individuals will bring new and urgent issues to the international agenda, and the dialog will help to encourage a better sense of States’ international legal obligations under the treaty. The consequences for ESC rights are likely to be modestly positive, if outcomes under the Optional Protocol of the ICCPR are any guide. Even States that already respect ESC rights in their domestic law should ratify, because there is a tendency, judging by the ratification behaviour relating to similar agreements, for States to emulate ratification practices of other States in their region. Ratification will neither end deprivation nor damage the credibility of the international legal system. It will be a modest step forward in consensus-formation of the meaning of ESC rights, which in turn is a positive step toward their ultimate provision.
* This article was reviewed independently by two referees.
Keywords: Human rights, economic social and cultural rights, ICESCR, justiciability, Human Rights Committee, impact.
Is there sound reason for Norway to not ratify the Optional Protocol to the ICESCR? This question is discussed in view of general principles of international law, the author’s experience as an adjudicator within the European human rights system and developments in domestic case law. It is submitted that the better arguments are in favour of ratifying the Optional Protocol and that not doing so may prove to be counter-productive, in particular at the international level.
Keywords: United Nations, Economic Social and Cultural Rights, Council of Europe European Social Charter, Human Rights, Complaints Procedures, Norway.
It is submitted that that ratification by Norway of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR) may have undesirable effects for Norway, particularly since the individual complaints mechanism may in reality encroach upon the legislature’s assessment of how best to achieve the aims of the Covenant and other societal goals. In the author’s view, many of the arguments advanced in favour of ratification do not stand closer examination.
Keywords: United Nations, Human Rights, Economic, social and cultural rights, Justiciability, Complaints Procedures, Norway.
The Human Rights Committee’s experience with an international complaints procedure provides a number of insights when considering the likely development of new Optional Protocol to its sister covenant, the ICESCR. Our starting point is the more political debates over the Optional Protocol to ICESCR and we extrapolate from the trajectory of the Human Rights Committee to try answer some of the questions raised in this discussion. We specifically discuss the institutionalist response to the justiciability debate that the Human Rights Committee arguably provides, the overlap between ICCPR and ICESCR in the Human Rights Committee’s jurisprudence and whether a flood of complaints is likely to arise. We also comment on a number of approaches of the Human Rights Committee that perhaps should be avoided.
Keywords: Human Rights Committee, Optional Protocol, ICCPR, ICESCR, justiciability, flood of complaints, discrimination.