Human Rights Tribune des droits humains
Volume 11, Nº 3

The right to be heard: The Optional Protocol to the International
Covenant on Economic, Social and Cultural Rights: What’s at stake?

By: Bruce Porter

In the next few months, governments around the world will decide whether or not to support the drafting of an “Optional Protocol” permitting the consideration of complaints under the International Covenant on Economic, Social and Cultural Rights (ICESCR). The final meeting of the Open Ended Working Group (OEWG) mandated by the UN Commission on Human Rights to consider options with respect to such a complaints procedure will be held in Geneva Feb. 6 to 17, 2006.

The debate about an Optional Protocol to the ICESCR bears directly on the larger issues of the integrity and effectiveness of the UN in defending and promoting human rights and on the international community’s commitment to addressing the crisis of global poverty and hunger.

Subsequent to this, the Commission on Human Rights (which may be the new Human Rights Council in 2006) will likely decide at its meeting in March/April, 2006 whether to extend the mandate of the Working Group to proceed to draft an Optional Protocol to the ICESCR.

There are a number of critical obstacles to achieving support for the drafting of an Optional Protocol that will need to be addressed in the coming months. At a time when the international community is debating proposals for widespread institutional reform at the UN to improve its effectiveness in the area of human rights and to simplify human rights treaty monitoring, there is a danger that governments may treat this issue as peripheral or unnecessary. Delegates from skeptical countries are asking why there is a need to create another complaints mechanism when we are trying to simplify things. Similarly, a focus on global campaigns to end poverty or on Millennium Development Goals may make the question of a complaints mechanism under the ICESCR, which can only be used by a relatively few individuals and groups, appear somewhat marginal. 

Far from being peripheral, however, the debate about an Optional Protocol to the ICESCR bears directly on the larger issues of the integrity and effectiveness of the UN in defending and promoting human rights and on the international community’s commitment to addressing the crisis of global poverty and hunger. The Optional Protocol debate is really about whether ESC rights are finally going to be treated as full-fledged human rights within the UN system, and as such, the decision reached by the UN Commission on Human Rights will have immense repercussions at the international, regional and domestic levels.

An optional complaint mechanism to the ICESCR is so long overdue that continued foot-dragging is really not an option. It is necessary to move forward on this issue simply to bring the ICESCR into line with other human rights treaties, most of which now have optional complaints mechanisms and in particular, with the International Covenant on Civil and Political Rights (ICCPR), for which an optional complaints mechanism was adopted almost 40 years ago and came into force in 1976. The 1993 Vienna Declaration and Program of Action urged continued work on an Optional Protocol, but it was not until a decade later that the UN Commission on Human Rights finally agreed to convene an Open Ended Working Group to consider the issue. Three years later, on the 30^th anniversary of the ICESCR, it is surely time for the Commission on Human Rights to resolve this longstanding inequality in the UN human rights system and authorize the drafting of an Optional Protocol.

The drafting of a comprehensive Optional Protocol, giving standing to both individuals and groups alleging violations of ESC rights and covering all aspects of the rights and obligations under the ICESCR has received the support of the UN High Commissioner on Human Rights, of Special Rapporteurs consulted by the OEWG, of representatives of the ILO and UNESCO, of virtually all of the experts participating in the discussions, and by a broad coalition of NGOs. It enjoys wide support among Latin American and African countries, as well as some European countries, led by Finland and Portugal, which chairs the OEWG.  

There has, however, been considerable resistance from countries such as the U.K., Australia and Canada, and determined opposition from the United States , to proceeding with an Optional Protocol. Support for a comprehensive Optional Protocol is neither assured at the upcoming OEWG, nor at the UN Human Rights Commission. There is a lot to win in moving forward with this debate about the equal status of ESC rights, but at the same time, there is a lot to lose.

In the context of sustained resistance from a number of states, there have been some disquieting discussions among governmental representatives of compromise positions that would represent very negative developments for ESC rights. Such compromises might, for example, restrict the complaint procedure to only certain rights in the Covenant, chosen “a la carte” by ratifying states, or worse, to certain components of rights, such as provisions for non-discrimination, or ill-defined notions of the “minimum core content” of the rights, or “grave violations.”  

The question, ultimately, is the relative status of different rights, and the ability of groups affected by violations of ESC rights - usually the most marginalized and powerless in society - to have access to any kind of hearing.

Instead of affirming the principle that all aspects of ESC rights must be subject to effective remedies, and allowing a jurisprudence on ESC rights to develop and flourish, any of these restrictions would instead convey the message that many of the most critical aspects of ESC rights are somehow exempt from the requirement, affirmed by the Committee on Economic, Social and Cultural Rights (CESCR), that ESC rights, like all human rights, must be subject to effective remedies. A decision to proceed with an Optional Protocol subject to restrictions or exclusions would reinforce the second-class status of ESC rights in the UN system and have a negative impact on domestic advocacy.

Should Canada, for example, exercise an option to exclude the right to an adequate standard of living from an “a la carte” complaints procedure, or should the obligation to fulfill ESC rights through reasonable allocation of available resources be excluded from the Optional Protocol, these exclusions would undoubtedly become the basis for courts and tribunals in Canada refusing to hear important claims related to those aspects of ESC rights. Rather than encouraging domestic implementation of the Covenant, and building on positive developments in ESC rights in Canada and in many other jurisdictions, a restricted Optional Protocol would move the critical markers backwards.

The alleged basis for restricting the scope of an Optional Protocol, of course, or for refusing to proceed with it at all, is the concern about the “justiciability” of ESC rights, particularly when they involve questions of available resources. Canada, for example, argued at the Human Rights Commission in 2003 that “an individual complaint mechanism is not well suited to considering the multitude of factors that must be faced in allocating resources and developing precise standards.” 

The lesson of emerging ESC rights jurisprudence at the domestic and regional levels, however, is the opposite of this. Considering individual ESC rights claims, as in other areas of human rights practice, actually enhances the ability to elaborate the nature of obligations on governments in light of available resources and competing demands. Courts in countries like South Africa, India and many in Latin America have largely put to rest assertions that certain components of ESC rights are not justiciable. Substantive claims related to the provision of food to hungry children, housing to communities living in desperate situations, or medication to vulnerable populations, even in situations of scarce resources and many competing demands, have been effectively adjudicated by courts without trenching upon the unique competence or authority of legislatures, and in ways that have saved thousands of lives. 

Louise Arbour, the UN High Commissioner on Human Rights, who herself demonstrated as a Justice of the Supreme Court of Canada the constructive role courts can play in this area, has observed that these experiences in many countries “help to dispel categorical assertions as to the non-justiciability of socio-economic rights.”

At a time when the international adjudication and enforcement of rights of corporate investors in trade and investment treaties such as the North American Free Trade Agreement (NAFTA) routinely engages complex issues of domestic social and economic policy, providing for enforcement of compensatory damage awards in the millions of dollars, it is difficult to take seriously the concerns voiced by Canada and others about a complaint mechanism through which a UN body will hear from individuals or groups whose right to food or housing may have been violated, and issue  “views” on whether a right has been violated. The question, ultimately, is the relative status of different rights, and the ability of groups affected by violations of ESC rights - usually the most marginalized and powerless in society - to have access to any kind of hearing.

Why, though, if the views of the adjudicating body are unenforceable, is this so important?  Having participated in a few of the debates in South Africa during the constitution drafting process about the justiciability of ESC rights, which were not unlike those surrounding the Optional Protocol at the UN, I was quite struck reading the beginning of the first judgment of the South African Constitutional Court dealing with the obligation to progressively realize the right to housing. After describing the plight of Irene Grootboom and her family, moving from squatter settlement to squatter settlement, and eventually living under plastic on the sports field of Wallacedene with the winter rains arriving, Justice Jacoob wrote: “The case brings home the harsh reality that the Constitution’s promise of dignity and equality for all remains for many a distant dream.” 

This is really what the debates about justiciability have been about - not, in the end, about institutional capacity or judicial intrusions on legislative domain, but about whether Irene Grootboom and others like her would, through a new adjudicative space, be able to bring to life the link between ESC rights like the right to housing, and the promise of dignity and equality at the core of all human rights. Adjudicating individual claims allows the subjective voice of rights claimants to break through legal principles and breathe life and meaning to human rights. Once the link between basic human rights values and government decisions is brought to light, courts or tribunals seem to be able to find their way through difficult questions of competing rights and institutional roles in the ESC rights field, just as they have in the field of civil and political rights.

The Optional Protocol should affirm, without restrictions or reservations, that ESC rights, like other human rights, can only be properly understood and elaborated if claimants of these rights are fully heard.

The question of an Optional Protocol to the ICESCR does not really challenge traditional limits of adjudication of rights, but rather, it challenges discriminatory exclusions from the international human rights movement of those who, increasingly, are in need of a voice. 

Cognizant of the import of these impending decisions at the UN, the NGO Coalition for an Optional Protocol to the ICESCR is sending an urgent message to those committed to human rights in all countries to contact their governments about this issue in the coming weeks to urge support for the drafting of a comprehensive and effective Optional Protocol to the ICESCR. 

The Coalition has identified a number of key elements that are necessary to such a protocol. It must be comprehensive, covering all of the rights in the ICESCR and all components of the rights. The typology of obligations - respect, protect and fulfill - applied  by the ICESCR in its General Comments to clarify different dimensions of state obligations should never be used as a basis for restricting the scope of adjudication or remedies of ESC rights.

The Optional Protocol should include both a complaints procedure and an inquiry procedure, through which investigations or fact-finding missions could be launched into grave or systemic violations of rights. It should provide standing to individuals, groups or organizations alleging violations of rights, so that violations affecting groups or communities can be addressed as such, and vulnerable individuals or groups may advance claims by way of organizations and it should provide for follow-up measures to ensure effective implementation of remedies. The Optional Protocol to the ICESCR, like that for the ICCPR and the Convention on the Elimination of All-Forms of Discrimination Against Women (CEDAW), should not permit reservations through which rights that are inter-dependent and overlapping would be severed.  

All of the requirements of a comprehensive Optional Protocol emanate from the basic principle that a complaints mechanism should enhance existing understanding of the ICESCR and allow the emergence of jurisprudence in the area of ESC rights that advances its broad purposes, not restrict it or narrow it in any way. The Optional Protocol should affirm, without restrictions or reservations, that ESC rights, like other human rights, can only be properly understood and elaborated if claimants of these rights are fully heard.