Correcting the historical asymmetry between rights: The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

 Lilian Chenwi
 LLB (Buea), LLM (Human Rights and Democratisation in Africa), LLD (Pretoria)
 Senior Researcher, Community Law Centre, University of the Western Cape, South Africa; Member of the Steering Committee of the International NGO Coalition for an Optional Protocol to CESCR (representing the Community Law Centre)
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 Edition: AHRLJ Volume 9 No 1 2009
  Pages: 23 - 51
 Citation: (2009) 1 AHRLJ 23-51
 Download article in PDF

An earalier draft of this paper was presented at the annual conference of partner faculties participating in the LLM (Human Rights and Democratisation in Africa) held at the University of Pretoria, 8 and 9 December 2008.

Summary

On 10 December 2008, the United Nations General Assembly unanimously adopted the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. The Optional Protocol ensures that, just like victims of civil and political rights violations, victims of economic, social and cultural rights violations have access to remedies at the international level. This article examines the Optional Protocol, starting with the historical background and its content, highlighting some of the main issues of controversy.

1.  Introduction

The Universal Declaration of Human Rights, 1948 (Universal Declaration) adopts a holistic approach, recognising the interrelatedness and indivisibility of human rights. It recognises that economic, social and cultural rights are indispensable for everyone’s dignity and the free development of their personality. The international community is, therefore, required to ‘treat human rights globally in a fair and equal manner, on the same footing and with the same emphasis’. [1]  The Universal Declaration was a major step forward in the advancement of civilisation at the international and national levels. [2]  It continues to be a source of inspiration to national and international efforts to promote and protect human rights and fundamental freedoms.

‘Dignity and justice for all of us’, the theme of the 2008 year-long campaign of the United Nations (UN) leading up to the 60th anniversary of the Universal Declaration could not have been more fitting, as this period witnessed a major step towards greater international social justice. [3]  The 60th anniversary of the Universal Declaration was marked by a milestone: the achievement of an international complaints mechanism for claiming socio-economic rights — the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (CESCR). [4]  This Optional Protocol brings about greater coherence in the human rights system, thus making human rights whole. [5]

Historically, economic, social and cultural rights have often been neglected. They have received less protection through enforcement mechanisms than civil and political rights. Unlike CESCR, 1966, the International Covenant on Civil and Political Rights, 1966 (CCPR) was adopted together with an Optional Protocol (OP1-ICCPR), establishing a procedure for individual complaints. [6]  For over 30 years, victims of civil and political rights violations have had the opportunity to lodge complaints with the Human Rights Committee, the supervisory body of CCPR. The individual complaints procedure under CCPR has helped victims of human rights violations and resulted in the clarification of the rights in CCPR. The Human Rights Committee has created a significant body of case law, requested interim measures, made declarations of violations, and recommended compensation to individual victims.

Victims of economic, social and cultural rights violations, on the other hand, have not had this benefit at the international level. This neglect of economic, social and cultural rights has observably been due to the general perception of these rights as programmatic, having to be realised gradually, and of a more political nature and not capable of judicial enforcement. [7]  However, the UN Committee on Economic, Social and Cultural Rights (ESCR Committee), academics and other writers have been influential in dispelling myths about economic, social and cultural rights. [8]  Courts have increasingly been willing to apply and enforce economic, social and cultural rights, even in countries where these rights are stated as mere principles to guide state policy. [9]  In addition, Pennegård has pointed out that the difference between civil and political rights and economic, social and cultural rights cannot be interpreted in a strict sense because, although the obligations they impose on governments may seem different at first sight, a more in-depth analysis often reveals a close connection and interrelationship between various human rights. [10]

The monitoring of the implementation of economic, social and cultural rights has, therefore, for several decades, been limited to the ESCR Committee’s consideration of state reports and other information submitted to it, mostly by non-governmental organisations (NGOs). [11]  However, UN human rights bodies, governments, civil society and experts have been at work to remedy this long-term gap in human rights protection under the international system, by way of an Optional Protocol to CESCR.

Following years of difficult negotiations, the Optional Protocol to CESCR has finally been adopted. This article captures some of the key discussions during the development process of the Optional Protocol. [12]  However, before examining the content, it is important to first consider the historical background to the Optional Protocol to CESCR. 

2.  Historical background

This section traces the journey from 1990, when the ESCR Committee started discussing the desirability and modalities of an individual complaints procedure for economic, social and cultural rights through an Optional Protocol to CESCR. [13]  Subsequently, the 1993 Vienna Declaration and Programme of Action urged the UN Commission on Human Rights (UNCHR), the predecessor to the Human Rights Council, in co-operation with the ESCR Committee, to continue work on an Optional Protocol to CESCR. [14]  In an analytical paper, the Committee submitted that there were strong reasons for the adoption of a complaints procedure in respect of CESCR. [15]  Consensus was reached within the ESCR Committee on the need for an individual complaints procedure in 1996. The ESCR Committee then finalised a draft Optional Protocol, which was presented to the UNCHR in 1997. [16]  In the same year, the UNCHR requested the Secretary-General to transmit the text to states, inter-governmental organisations and NGOs for their comments. This process took three years. There was very little enthusiasm at this stage due to a lack of political consensus on the text, particularly among states. Most member states did not submit comments while NGOs strongly supported the draft Optional Protocol. The few states that submitted comments in favour of an Optional Protocol were Croatia, Cyprus, the Czech Republic, Ecuador, Finland, Georgia, Germany, Lebanon, Lithuania, Mauritius, Mexico, Norway and Portugal; while Canada and Sweden expressed doubts on its desirability. [17]

There was, however, some progress in 2001. The UNCHR organised, together with the International Commission of Jurists, a two-day workshop on the justiciability of economic, social and cultural rights, with particular reference to an Optional Protocol to CESCR. In the same year, the UNCHR decided to appoint an independent expert to examine the question of a draft Optional Protocol and the comments made on it by states, inter-governmental organisations and NGOs as well as the report of a workshop held in 2001 on the justiciability of economic, social and cultural rights. [18]  The independent expert was required to report back to the UNCHR at its 58th session.

The independent expert, Hatem Kotrane, held a series of consultations with UN bodies and states and, in 2002, submitted his first report, in favour of the adoption of an Optional Protocol. [19]  The mandate of the expert was renewed in order to allow him to study in greater detail the nature and scope of state parties’ obligations under CESCR, the question of the justiciability of economic, social and cultural rights, and questions as to the benefits and practicability of a complaints mechanism under CESCR and the issue of complementarity between different mechanisms. [20]  In his second report, the independent expert recommended that the UNCHR establish, at its 59th session, an Open-Ended Working Group (OEWG) with the mandate to consider options regarding the elaboration of an Optional Protocol to CESCR. [21]

In 2003, the UNCHR established the OEWG. [22]  The UNCHR requested the Working Group to meet for a period of ten working days, prior to the 60th session of the Commission, with a view to considering options regarding the elaboration of an Optional Protocol, in the light of, amongst others, the report of the ESCR Committee on a draft Optional Protocol, comments and views submitted by states, intergovernmental organisations, including UN specialised agencies, and NGOs, and the reports of the independent expert. The OEWG held five sessions — in 2004 (23 February to 5 March), 2005 (10 to 20 January), 2006 (6 to 16 February), 2007 (16 to 27 July) and 2008 (4 to 8 February 2008 and 31 March to 4 April 2008).

At the end of its first session, the OEWG did not reach consensus on whether to start drafting an Optional Protocol. [23]  At its second session in 2005, the OEWG gave the Chairperson, Catarina de Albuquerque, a mandate to prepare a report containing elements of an Optional Protocol with a view to facilitating the discussions. The Elements Paper addressed a range of issues, including the scope of the rights to a communication procedure, admissibility criteria, standing, proceedings on the merits, friendly settlement of disputes, interim measures, views, follow-up procedures, reservations, inquiry procedure, inter-state procedure, the Optional Protocol and domestic decisions on resource allocation, the relationship of the Optional Protocol with existing mechanisms, and international co-operation and assistance. [24]  The Elements Paper allowed for a focused discussion on the main elements of an individual communications procedure at the third session of the OEWG.

Following the third session of the OEWG, the debate shifted from whether economic, social and cultural rights should be subject to a complaints procedure to what the specific nature and modalities of such a procedure should be. The Human Rights Council, at its first session, renewed the mandate of the OEWG for a further two years so that it could elaborate on an Optional Protocol. [25]  The Human Rights Council requested the Chairperson of the OEWG to prepare a draft Optional Protocol to be used as a basis for future negotiations. The Council also requested the OEWG to meet for ten working days each year, and directed that a representative of the ESCR Committee should attend these meetings as a resource person. Between 2007 and 2008 several drafts were discussed.

Though the journey has been riddled with obstacles and setbacks, revolving mainly on continuing doubts about the justiciability of economic, social and cultural rights, a milestone in the history of universal human rights has been achieved. The OEWG completed its mandate in April 2008 with the transmission of the draft Optional Protocol to the Human Rights Council, which subsequently adopted it by consensus in June 2008. The Human Rights Council recommended that the UN General Assembly adopts the Optional Protocol. [26]  In November 2008, the Third Committee of the UN General Assembly approved by consensus a draft resolution on the adoption of the Optional Protocol to CESCR, recommending its adoption and, similar to the Human Rights Council Resolution, that it be opened for signature in 2009. [27]  The General Assembly adopted by consensus the Optional Protocol on 10 December 2008, the day of the 60th anniversary of the Universal Declaration. [28]  The Optional Protocol will be open for signature this year (2009) and will come into force after ten ratifications. [29]

3.  Contents of the Optional Protocol

The Optional Protocol reaffirms the universality, indivisibility and interrelatedness of all human rights. [30]  It refers to the principles of equality and non-discrimination as embodied in the UN Charter, 1945, the Universal Declaration, CCPR and CESCR. [31]  The listed grounds of discrimination are ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. [32]

The Optional Protocol further considers it appropriate to enable the ESCR Committee to carry out the functions in the Optional Protocol as a means of furthering the achievement of the purpose of CESCR and the implementation of the provisions therein. [33]  Hence, article 1 of the Optional Protocol recognises the competence of the ESCR Committee to receive and consider communications alleging violations of the economic, social and cultural rights set forth in CESCR by a state party to the Protocol. The ESCR Committee has the discretion to, if necessary, ‘decline to consider a communication where it does not reveal that the author has suffered a clear disadvantage, unless the Committee considers that the communication raises a serious issue of general importance’. [34]  This provision was included because of the need to add in a threshold that would allow the ESCR Committee not to deal with complaints of minor importance.

The Optional Protocol also provides for the possibility of interim measures in ‘exceptional circumstances’, [35]  allows for the friendly settlement of disputes, [36]  creates an inter-state complaints procedure [37]  and an inquiry procedure, [38]  and provides for follow-up mechanisms. [39]  It requires state parties to ‘take all appropriate measures to ensure that individuals under its jurisdiction are not subjected to any form of ill-treatment or intimidation as a consequence of communicating with the Committee’. [40]  This provision ensures that the rights and safety of those who use the communication procedure are guaranteed and protected. This provision is identical to article 11 of Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (OP-CEDAW). Its inclusion was not the subject of much discussion; it had, actually, not been discussed prior to the fourth session of the OEWG. [41]

The subsequent paragraphs consider, in more detail, the discussions around some of the provisions of the Optional Protocol: who can bring a complaint and the rights that are covered, admissibility criteria and the standard of review to be applied in considering communications, international co-operation and assistance and the establishment of a fund.

3.1  The rights covered

Communications must relate to a violation of any of the economic, social and cultural rights. [42]  The main questions raised during the discussions related to whether the procedure should apply to all of the rights recognised in CESCR or only to some; and whether states should be allowed, on ratification, to choose the rights that would apply to them.

Various approaches were proposed, including: a comprehensive approach, allowing for communications under any of the rights in CESCR; [43]  a limited approach, limiting the procedure to parts II and III of CESCR; and an à la carte approach (including the opt-out or reservation approaches), allowing states to choose the rights or levels of obligations that would apply to them. All existing communication procedures under the international system adopt the comprehensive approach. Hence, the à la carte approach is unprecedented within the UN human rights treaty-based system.

However, a number of states supported the à la carte approach at various sessions, arguing that a selective approach would enable a larger number of states to become parties to the Protocol and allow states to limit the procedure to those rights for which domestic remedies exist. [44]  Poland and the United Kingdom preferred another version of an à la carte approach, the ‘opt-in approach’, arguing that the approach would allow states to add further rights at a later stage while not preventing other states from accepting petitions, and that opt-out from certain rights might send the signal that these rights were less important. [45]  The arguments for an opt-out clause related to the non-justiciability of economic, social and cultural rights, the competence of the ESCR Committee and the difference in the situations of states. For instance, in states where economic, social and cultural rights have not yet been made justiciable, they would be able to freely determine the provisions and obligations arising from CESCR that they are ready to assume.

A majority of states supported a comprehensive approach. [46]  Their support for the comprehensive approach was based on the following: that an à la carte approach would establish a hierarchy among human rights, disregard the interrelatedness of provisions of CESCR, amend the substance of CESCR, disregard the interest of the victims, and defy the purpose of the Optional Protocol to strengthen the implementation of all economic, social and cultural rights. [47]  Those that supported a comprehensive approach therefore saw the à la carte approach as a way of introducing a hierarchy of rights. [48]  It was further argued that the approach would undermine the integrity and independence of the rights in CESCR, as it would allow states to ‘opt out’ of the obligation to provide effective remedies to particular rights or components of rights in CESCR. [49]  This would also reinforce the idea that some rights are different in nature and require a lesser level of protection than others do, and would ignore the importance of maintaining a unitary and indivisible framework of human rights obligations. Furthermore, such an approach would contradict the principle enunciated clearly by the CESCR Committee that ‘effective remedies’ should be made available to all rights recognised in CESCR, even if such remedies may not always be judicial. [50]  It was noted during the discussions that, based on experience from the European system, an à la carte approach has not helped in promoting a full understanding of the provisions of the European Social Charter, 1961, resulting in the creation of different charters for different countries. [51]

It should be noted that though Egypt was, generally, in favour of a comprehensive approach, it indicated at the fourth session of the OEWG that it would be able to accept the exclusion of part I of CESCR from the Optional Protocol. [52]  Australia, Greece, India, Morocco, Russia and the United States also favoured excluding part I of CESCR. [53]  This exclusion would mean that the right to self-determination would not be subject to the communications procedure. The right to self-determination is also included in CCPR and is already formally subject to individual complaints under the OP1-ICCPR. The position of the ESCR Committee has always been that, in addition to its civil and political dimensions, this right has economic, social and cultural dimensions that merit protection under the Optional Protocol. [54]  The exclusion of this right would, therefore, deny victims their rights to cultural, economic and social self-determination.

The Optional Protocol does not make reference to any of the parts of CESCR, as it requires that a communication must allege a violation of ‘any of the economic, social and cultural rights set forth in the Covenant’. Hence, it remains open whether the ESCR Committee interprets this to include or exclude the right to self-determination or at least some components of the right.

3.2  Standing

Communications can be submitted by (1) individuals, (2) groups of individuals, or (3) other persons on their behalf, claiming to be victims of a violation. [55]  With regard to the latter group, consent has to be obtained unless the author of the communication can justify acting on the victims’ behalf without such consent. This exception was inspired by article 2 of OP-CEDAW. Its inclusion was proposed by Brazil, Chile, Portugal, Uruguay and the NGO Coalition, [56]  amongst others, as an alternative to the requirement of express consent that was being proposed by some states. [57]  The difference between the Optional Protocol to CESCR and OP1-ICCPR is that the latter does not explicitly refer to groups having standing, as it uses the terminology ‘individuals’. [58]  However, in practice, the Human Rights Committee has allowed communications from a group acting on behalf of a victim or from groups whose members were individual victims. [59]  Hence, the Optional Protocol to CESCR has reinforced this practice by granting standing to groups.

During the discussions, there was the question of whether to allow NGOs to submit collective communications, which resulted in the inclusion of a provision on collective complaints in earlier drafts. It allowed international NGOs with consultative status before the UN Economic and Social Council (ECOSOC) to submit communications alleging unsatisfactory implementation by any state of the right in CESCR. [60]  This procedure had no victim requirement and the elements of the procedure were derived from the example of the European Social Charter’s collective complaints mechanism. However, the provision did not receive much support. Since NGOs do have standing under article 2 when acting in a representative capacity for victims, there was substantial consensus during the discussions that the provision be deleted. [61]  The unwillingness of the OEWG to include a provision on collective complaints echoes the practice of the Human Rights Committee, which is to the effect that NGOs cannot submit a communication in the public interest without having to act on behalf of individuals or groups of individuals. [62]

An important point worth noting with regard to article 2 is that the Optional Protocol is silent on whether or not the NGOs acting on behalf of victims must have consultative status before the UN ECOSOC before they can submit a communication.

3.3  Admissibility criteria

National remedies that are accessible and effective are the primary means of protecting economic and social rights. [63]  Accordingly, similar to other human rights treaties at both the international and regional level, in order for a communication to be considered by the ESCR Committee, all available domestic remedies have to be exhausted, unless where the application of such remedies is unreasonably prolonged. [64]  The exception to the exhaustion of local remedies rule that a communication may be declared admissible if local remedies are ‘unlikely to bring effective relief’, which is contained in OP-CEDAW, for instance, has been left out. [65]  In an earlier draft, ‘unlikely to bring effective relief’ was also an exception, but its deletion was proposed by Burkina Faso, Ecuador, Egypt (on behalf of the African Group), Poland and the United States. [66]

The exhaustion of domestic remedies requirement provides a state with an opportunity to redress any wrongs that it may have committed — to remedy the alleged violation — before the case is brought to the ESCR Committee. It also prevents the ESCR Committee from becoming a tribunal of first instance for cases for which an effective domestic remedy exists. [67]

A practical question arises with regard to this requirement in situations where economic, social and cultural rights are not provided for as justiciable rights. Would this mean that domestic remedies are not available? Viljoen observes that ‘a remedy is “available” if it can be utilised as a matter of fact and without impediment’. [68]  Where economic, social and cultural rights are not justiciable, access to courts in order to seek direct enforcement and protection of these rights becomes difficult. The African Commission on Human and Peoples’ Rights (African Commission) is of the view that where courts are prevented from taking up cases, local remedies become non-existent and that if a right is not well provided for in domestic law, there cannot be effective remedies or any remedies at all. [69]  In addition, in the Inter-American system, where domestic legislation does not afford due process of law for the protection of rights, the requirement to exhaust domestic remedies is not applicable. [70]

However, domestic remedies are not limited to judicial remedies. Economic, social and cultural rights may be subject to judicial or quasi-judicial remedies such as national human rights commissions, the ombudsman or administrative complaints. [71]  The provision in the Optional Protocol to CESCR is similar to that in the OP1-ICCPR, [72]  and the Human Rights Committee has explained that the requirement to exhaust ‘all available domestic remedies’ in the latter ‘not only refers to judicial but also to administrative remedies’. [73]  The Human Rights Committee has also pointed out that if administrative remedies are the only remedies available, they have to be exhausted. [74]  The ESCR Committee, in dealing with the domestic application of CESCR, has observed that [75]

It is important to note that the particular circumstance of the individual case would be relevant in any determination of whether domestic remedies are in fact available. [76]  Where no domestic remedies exist, a petitioner would be able to take a communication straight to the international level. [77]

In addition to the exhaustion of domestic remedies requirement, communications have to be submitted within one year after the exhaustion of such remedies, unless the author of the communication can show that it was not possible for him or her to submit the communication within this time frame. [78]  Initially, the time limit was six months, but it was felt by a number of states and the NGO Coalition that this was particularly restrictive given the potential complexity of economic, social and cultural rights claims and the impact it may have on access to justice for victims of violations of these rights. [79]

Article 3 further elaborates other grounds on which a communication may be declared inadmissible. These are where the facts that are the subject of the communication occurred prior to the entry into force of the present Protocol for the state party concerned, unless those facts continued after that date; where the same matter has already been examined by the ESCR Committee or has been or is being examined under another procedure of international investigation or settlement; where it is incompatible with the provisions of CESCR; where it is manifestly ill-founded, not sufficiently substantiated or exclusively based on reports disseminated by mass media; [80]  where it is an abuse of the right to submit a communication; or where it is anonymous or not in writing. [81]

Some states had proposed the inclusion of the requirement that regional remedies must be exhausted first before a complaint can be lodged with the ESCR Committee, as a means of ensuring that the communications procedure under CESCR would not undermine existing procedures in regional human rights systems. [82]  It was also noted that regional mechanisms were better positioned to take into account a state’s level of development. [83]  However, a number of states as well as the NGO Coalition opposed the proposal arguing that such a criterion, combined with the prohibition to admit matters already examined, would prevent victims from accessing the system and introduce a hierarchy between international and regional mechanisms. [84]  It was also argued that regional mechanisms differed widely and none corresponded fully with a complaints procedure under CESCR. [85]  This criterion has not been included in the Optional Protocol. This exclusion is plausible, as regional mechanisms should play a complementary role to UN mechanisms rather than provide a basis for denying complaints from regions where regional remedies are available.

3.4  Interim measures

The capacity to prescribe interim measures is one of the most important functions of any judicial or quasi-judicial body adjudicating complaints. For any complaints mechanism to be fully effective, it must be able to perform a pre-emptive function — to stop harm before it can occur, or to stop an ongoing harm from continuing, or at least mitigating the effects of that harm. In fact, all UN communication procedures make provision for interim measures either in the rules of procedure of the respective committees or in a treaty provision. Compliance with interim measures does not only ensure respect for human rights but they are, as Viljoen states, aimed at upholding the integrity of the body that will take the final decision. [86]

During the discussions of the OEWG, a number of states and the NGO Coalition highlighted the need for the ESCR Committee to have the power to request interim measures. [87]  Accordingly, the Optional Protocol in article 5 enables the ESCR Committee to respond to exceptional or life-threatening situations in order to avoid possible irreparable harm to the victim(s) of the alleged violation. The risk of such harm would have to be sufficiently substantiated. The request to take interim measures can be made at any time after the receipt of a communication and before a determination on the merits has been reached. A state is required to act on such request with urgency. [88]

Furthermore, a proposal that a linkage should be established between the use of interim measures and the capacity or resources available to the state concerned was not incorporated, [89]  the reasons being that such a provision is not contained in any of the existing communications procedures and, based on its practice in considering state reports, the ESCR Committee would be expected to take into account the issue of resource constraints in the consideration of interim measures and communications in general. [90]  Some states opposed referring to resource availability, as states are obliged to avoid possible irreparable damage at all times. [91]

Among the states that had reservations as to the inclusion of interim measures in general were Japan, which, surprisingly, found it difficult to imagine an urgent situation requiring interim measures given the nature of economic, social and cultural rights and questioned the need for such measures. [92]  Others wanted states to be given an opportunity to comment on the appropriateness of interim measures prior to their application, which, apparently, defeats the whole purpose of interim measures. [93]

Another issue that came up during the discussions on interim measures was a proposal by Norway and Sweden to specify in the text the voluntary nature of requests for interim measures. Such specification would limit the purpose of interim measures. The proposal was not incorporated, with some states noting that its inclusion was not necessary since the ESCR Committee’s views and requests were non-binding and voluntary in nature. [94]

The practical challenge would be to get states to comply with a request to take interim measures. Based on a comprehensive study of interim measures ordered in human rights cases before international enforcement bodies, Pasqualucci concludes that, though states have generally accepted the decisions of international courts that interim measures are binding, many states have not yet accepted the view that interim measures specified by international quasi-judicial bodies are also binding on them. [95]  This is a critical challenge if one looks at, for instance, the African human rights system, where ‘states almost uniformly disregarded’ such requests made by the African Commission, though not in the context of economic, social and cultural rights. [96]

3.5  Friendly settlement

Friendly settlement is a general principle of international law. It is included explicitly in article 41(1)(e) of CCPR, article 21(1)(c) of the Convention against Torture, Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 (CAT) and article 76(d) of the International Convention on the Rights of Migrant Workers and Members of Their Families, 1990 (CRMW). It is also recognised in the Inter-American, European and African human rights systems.

Accordingly, article 7 makes provision for friendly settlement of disputes and it is applicable to all communications. A friendly settlement agreement closes consideration of a communication, [97]  despite warnings by Brazil, Switzerland and the NGO Coalition that no communication should be closed before a friendly settlement has been fully implemented. [98] A number of states and the NGO Coalition supported its inclusion, [99]  while others wanted the friendly settlement procedure to apply only to inter-state communications. [100]  The success of a friendly settlement mechanism depends on its ability to guarantee the rights of both the individual and society as a whole, and must, therefore, not prejudice the subsequent consideration of a communication should the efforts for a friendly settlement fail. Hence, those that supported its inclusion proposed that it should be subject to one or more of the following safeguards: fairness; good faith; respect for human rights; optional character; close monitoring of the implementation of the settlement; possibility to return to the adversarial procedure in the case the friendly settlement fails or is unduly delayed; possibility of the ESCR Committee to end the settlement at any time and continue with the consideration of the communication, and the terms of the settlement should be subject to review and approval by the ESCR Committee. [101]  However, there were oppositions to the Committee reviewing friendly settlements, arguing that it would undermine the nature of such a settlement. [102]

Notwithstanding, the ESCR Committee might consider the review of such settlements in its Rules of Procedure. For a friendly settlement procedure to be effective, the possibility of the ESCR Committee considering the communication should be left open until the settlement agreement itself has been implemented fully.

3.6  Examination of communications and the standard of review

The relevant documentation that the ESCR Committee may consult when examining a communication are those emanating from other UN bodies, specialised agencies, funds, programmes and mechanisms, and other international organisations, including regional human rights systems, and any observations or comments by the state party concerned. [103]  In addition, the standard of review in socio-economic rights cases is that of reasonableness. [104]

The key issues that arose during the discussions of the OEWG were whether oral hearings should be allowed; whether regional mechanisms should be consulted; and the standard the ESCR Committee would apply in its assessment.

The possibility of oral hearings was not discussed at length. At the third session of the OEWG, Finland and Mexico stressed the usefulness of oral hearings as provided for in the Rules of Procedure of the Committee against Torture and the Committee on the Elimination of Racial Discrimination, but did not specifically suggest whether or not it should be included in the Optional Protocol. [105]  At the fourth session, Finland and Slovenia supported the possibility of oral hearings with basic rules included in the Protocol, while Ethiopia suggested that such hearings were better dealt with in the Rules of Procedure. [106]  The use of oral hearings has been encouraged as a way of enhancing the complaints procedure under OP1-ICCPR. [107]  Some regional human rights mechanisms allow oral hearings. The African Commission, for example, allows oral representation. [108]

The Optional Protocol does not make explicit reference to oral hearings or oral documentation when considering individual communications. However, unlike the OP1-ICCPR, [109]  the Optional Protocol does not explicitly limit the information submitted to the ESCR Committee to written information either. It merely refers to ‘all documentation’. [110]  It is therefore left to the Committee to decide whether or not to allow oral hearings. It is important to note that the inter-state procedure under the Optional Protocol makes explicit reference to oral and written submissions. [111]

It should be noted further that the Optional Protocol does not allow for public hearings. Similar to OP1-ICCPR, the ESCR Committee is required to hold closed meetings when examining communications. [112]

The question of whether regional mechanisms should be consulted was based on the need for the Optional Protocol to take due account of, and benefit from, the experiences of existing regional human rights mechanisms, and the importance of ensuring co-operation and avoid duplication between regional and UN human rights mechanisms. During the discussions of the OEWG, a number of states supported the possibility of seeking additional information on a case from international and regional mechanisms, including from UN specialised agencies. [113]  Under the Optional Protocol, the ESCR Committee [114]

Hence, international NGOs with expertise in the area under consideration may be consulted as well.

It is worth noting that the International Labour Organisation (ILO) wanted a specific provision to be included requiring the ESCR Committee, when considering communications dealing with matters falling within the ILO’s competence, to invite it to participate in the examination of the communication. However, this proposal did not receive much support, since article 8(3) already makes provision for information from specialised agencies. The ILO subsequently withdrew its proposal on the understanding that it would be accommodated in the practice of the Committee. [115]

Furthermore, the OEWG discussed at length what standard the ESCR Committee would use in measuring compliance by states with their obligations under CESCR. The different criteria for the assessment of violations of rights that were considered during the discussions include ‘reasonableness’, ‘unreasonableness’ and a wide ‘margin of appreciation’ for states in their policy choices.

A number of states supported the application of the standard of reasonableness. [116]  This standard is consistent with both international and domestic standards of review in the field of economic, social and cultural rights. In fact, many international human rights treaties contain several references to the concept of reasonableness, UN treaty bodies have also used the concept in different contexts and with regard to various rights, and the concept has been largely used either as a criterion relating to the time frame for carrying out an action or as a criterion for legitimate restrictions on rights. [117]  In addition, the South African Constitutional Court also applies this standard in assessing the state’s compliance with its obligation to take steps towards realising a right, as the state could adopt a wide range of measures to meet its obligations, but the question that remains to be answered is whether the measures are reasonable. [118]

Other states expressed concern over the term ‘reasonableness’. [119]  The United States was against the use of the term, and proposed its replacement with the concept of ‘unreasonableness’ and the addition of a reference to ‘the broad margin of appreciation of the state party to determine the optimum use of its resources’. [120]  The test of ‘unreasonableness’ is to the effect that an administrative decision would be considered unreasonable if the court considers it to be a decision that no reasonable body could have come to. [121]  Reference is also made to the concept of unreasonableness in South African administrative law. Article 6(2)(h) of the Promotion of Administrative Justice Act 3 of 2000 gives a court or tribunal the power to judicially review an administrative action if the exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of which the administrative action was purportedly taken, ‘is so unreasonable that no reasonable person could have so exercised the power or performed the function’. Some states at the discussions of the OEWG expressed support or interest in the ‘unreasonableness’ standard. [122]  However, others, including the NGO Coalition, objected to the standard, holding the view that it is rather restrictive and comes close to amending CESCR, especially as the ‘reasonableness’ standard is implicit in the provisions of CESCR as seen in the use of the phrase ‘appropriate means’ in article 2(1). [123]

The ‘broad margin of appreciation’ proposal was supported by some states. [124]  However, the NGO Coalition as well as other states expressed concern about referring to the ‘broad margin of appreciation’, arguing that, while it is implicit in CESCR, it is a flexible notion the application whereof varies depending on the specific context and the right in question; it would undermine the core objective of the Protocol; increase the burden of proof on victims; and it could undermine the sovereignty of states. [125]

As noted above, the standard of review in the Optional Protocol is that of ‘reasonableness’ and there is no explicit reference to the ‘margin of appreciation’ of states. The particular provision reads: [126]

It is hoped that, when applying this standard, the ESCR Committee would draw inspiration from the existing jurisprudence at the international and national levels that have applied this standard.

3.7  Inter-state communications

Inter-state communications procedures allow a state to bring a complaint against another, so as to ensure that the other state abides by its treaty obligations. Such procedures have been included in other UN human rights treaties. [127]

Article 10 of the Optional Protocol makes provision for the ESCR Committee to receive and consider communications from a state party alleging that another state party is not fulfilling its obligations under CESCR. The procedure is optional — ‘opt-in’ — as state parties have to declare that they recognise the competence of the ESCR Committee in this regard before the provision can be applicable to them. This is similar to most treaties. Acceptance of an inter-state complaints procedure is optional in CCPR, CAT and CRMW. However, it is mandatory in CERD, as well as, at the regional level, under, for instance, the African Charter on Human and Peoples’ Rights (African Charter).

Inter-state communications received much attention during the discussions of the OEWG, particularly in relation to whether or not it should be included and whether it should be mandatory or optional. This was partly because similar procedures under other human rights mechanisms have hardly been used. In fact, no inter-state communication has been submitted under any of the UN human rights treaties. However, at the regional level, as at 2007, 13 have been decided under the European human rights system and one under the African human rights system. [128]

Though states were sceptical or had reservations [129]  about the procedure during the discussions of the OEWG, a number of states supported its inclusion in the Optional Protocol, especially as an optional procedure. [130]  Under the Optional Protocol to CESCR, states may withdraw from this procedure at any time by notification to the Secretary-General in terms of the declaration made under article 10. Once the notification of withdrawal has been received, the ESCR Committee can no longer receive communications against the state party concerned. [131]

3.8  Inquiry procedure

Inquiry procedures are generally important as they allow the supervisory bodies to respond, in a timely fashion, to grave or systematic violations that are in progress. Articles 11 and 12 make provision for an inquiry procedure. Similar to the interstate procedure, the inquiry procedure is an ‘opt-in’ one. The ESCR Committee is able to respond to ‘grave or systematic violations’ based on ‘reliable information’ it receives. The inquiry procedure is different from communications procedures in that, in the inquiry procedure, the ESCR Committee does not have to receive a formal complaint; it is up to it to decide to initiate the procedure and there is no victim requirement.

A similar procedure exists under CAT and the OP-CEDAW and both are ‘opt-out’, as states may enter a reservation that they do not recognise the competence of the respective committee in this regard. [132] During the discussions of the OEWG, its inclusion was justified on the grounds that it would allow a response to be made to serious violations in a timely manner and it could be used by individuals and groups facing difficulties in accessing the communication procedure or in danger of reprisal. [133]  Accordingly, several states and the NGO Coalition supported its inclusion, with some emphasising that it must be optional. [134]  Others were not in support of or expressed reservations about such a procedure, [135]  while Denmark wanted it to be limited to cases of non-discrimination or other fundamental and well-defined principles. [136]  Some of the concerns were based on the fear of an overlap between this procedure and the work of UN Special Rapporteurs. [137]

The inquiry procedure is confidential at all stages — all meetings of the ESCR Committee dealing with an inquiry procedure are closed — but the results can be included in the Committee’s report following consultation with the state concerned. The ESCR Committee is also required to seek the co-operation of the state concerned at all stages of the proceedings. Moreover, where the ESCR Committee decides to initiate a visit to the state concerned, it cannot do so without the state’s consent. The practical challenge would be getting states to fully co-operate with regard to country visits, as consent itself does not necessarily guarantee full co-operation. Hence, respect for state sovereignty is a key element in the procedure.

It should be noted that a state party can, at any time, withdraw the declaration under article 11. [138]  Unlike with the inter-state communication procedure, it is not clear whether the ESCR Committee can continue with an inquiry it commenced before the withdrawal notification, due to the absence of the qualification contained in article 10 of the Optional Protocol.

3.9  Follow-up mechanism

Generally, follow-up mechanisms may take various forms, including calling on the offending state to discuss the measures it has taken to give effect to the recommendations, or inviting the state party to include in its report the details of the measures taken. The advantage of the follow-up procedure is that it opens an avenue for addressing problems encountered when implementing views and recommendations and guarantees that they would be actually implemented. It also allows for guidance and support to be provided to states regarding measures taken to comply with the decisions. In addition, it is a means of assessing the impact of the decisions of the ESCR Committee on the lives of those affected or others living in the state concerned.

Article 9 of the Optional Protocol emphasises the obligation of states to implement the views and recommendations of the ESCR Committee and enables the Committee to monitor their implementation. It requires a state party to submit to the Committee, within six months, a written response to its views and recommendations, including information on any action taken in light of the views and recommendations. The Committee may invite the state party to submit further information on any measures taken in response to its views or recommendations in its subsequent state party report under CESCR. [139]  This provision ensures that decisions and recommendations are effectively enforced.

The provision on follow-up to the views of the ESCR Committee was not a controversial one. In fact, the Optional Protocol to CESCR goes a step further than the OP1-ICCPR, as the latter does not explicitly provide for a follow-up mechanism. Rather, it only requires the Human Rights Committee to transmit its views to the parties. [140]  However, rule 95 of the Rules of Procedure of the Human Rights Committee allows it to ‘designate a Special Rapporteur for follow-up on views adopted under article 5, paragraph 4, of the Optional Protocol, for the purpose of ascertaining the measures taken by state parties to give effect to the Committee’s views’. [141]  The Optional Protocol to CESCR does not make reference to a Special Rapporteur, but it is important that this issue be addressed in the Rules of Procedure as the ESCR Committee might not have the capacity to follow up on views on its own. Furthermore, though the Human Rights Committee had adopted a statement indicating that the state has to reply within a period not exceeding 180 days, in practice, it usually indicates a period of 90 days. [142]  It would be interesting to see if, in practice, the ESCR Committee will stick to the six month period or reduce it as the Human Rights Committee usually does. It would also be interesting to see the extent to which states will comply with the follow-up procedure, since it is contained in the treaty itself, as states have not often co-operated with the Human rights Committee in this regard.

In addition, the inquiry procedure, just like the individual communications procedure, includes a follow-up mechanism. This gives the ESCR Committee room to monitor the implementation of its recommendations and the measures taken by a state party in response to the inquiry conducted. 

3.10  International assistance and co-operation and the fund

Article 14 of the Optional Protocol requires the ESCR Committee to transmit, when appropriate, to UN specialised agencies, funds and programmes and other competent bodies, its views and recommendations concerning communications and inquiries that indicate a need for technical advice or assistance. This has to be done with the consent of the state party concerned. [143]

The importance of international co-operation and assistance as a tool in ensuring enhanced implementation of economic, social and cultural rights in general, and the views and recommendations of the ESCR Committee in particular, was highlighted during the discussions of OEWG. [144]  It is an obligation of states that is underlined in articles 2(1), 11(1) and (2), 15(4), 22 and 23 of CESCR, and is based on free consent. [145]  The view of the ESCR Committee is that in the absence of an active programme of international assistance and co-operation on the part of all those states that are in a position to undertake one, the full realisation of economic, social and cultural rights will remain an unfulfilled aspiration in many countries. [146]  In fact, one of the roles of the ESCR Committee is [147]

At the regional level, looking at the African system, for instance, international co-operation and assistance is an objective of the African Union (AU). [148]

Though Venezuela observed that the state reporting procedure was more appropriate to identify needs for technical assistance, a number of states supported its inclusion in the Optional Protocol. [149] Furthermore, article 14(3) makes provision for the establishment of a fund to provide

States are the direct beneficiaries of the fund, though victims were also beneficiaries in earlier drafts and some states had indicated their support for providing assistance to victims. [150]  Moreover, the kind of assistance under the fund is not financial assistance, but ‘expert and technical’ assistance. It is important to note that issues relating to the modalities of the fund have not been addressed in the Optional Protocol, but have been left to the General Assembly.

The establishment of a fund was proposed as a means of encouraging and facilitating international assistance and co-operation. Some human rights treaties make provision for the establishment of a fund. For instance, the Optional Protocol to CAT, 2002 (OP-CAT) establishes a fund to help finance the implementation of the recommendations made by the Sub-Committee on Prevention after a Visit to a State Party, as well as education programmes of the national preventive mechanisms. [151]  This fund is financed through voluntary contributions made by governments, inter-governmental organisations, NGOs and other private or public entities. [152]  Also, the Rome Statute of the International Criminal Court, 1998, establishes a fund for the benefit of victims of crimes within its jurisdiction and their families. [153]  This fund is financed through money and other property collected through fines or forfeiture to be transferred, by order of the Court, to the trust fund. The Rome Statute does not exclude the possibility that it might be financed from other sources, and it sketches the general outlines of the trust fund, leaving the Assembly of State Parties to decide on how to implement it in practice.

While the establishment of a fund received some support, [154]  a majority of states objected to it. [155]  The objections were based on the risk of duplicating other funds and the practical difficulties in implementing and managing the fund. It was also argued that there are dangers in linking violations to funding and that the fund would involve high administrative costs and imposes an additional burden on the Office of the High Commissioner for Human Rights (OHCHR). [156]  It was pointed out, however, that concerns about duplication had not been an issue when OP-CAT was adopted, the fear of additional burden for the OHCHR should not prevent the creation of the fund, and that developing countries could not fully realise the rights in CESCR without international assistance. [157]  One thing that was clear from states, even those who supported the fund, was that the fund should not be mandatory. [158]

4.  Conclusion

Individual complaints procedures are vital in that they further develop and fine-tune international human rights law, create precedents, draw attention to the specific, concrete human rights violation, making the problem and the victim more visible, and the remedy more specific and implemental. [159]  Though some writers have questioned the establishment of this new international adjudicative mechanism, [160]  the benefits of having the Optional Protocol to CESCR are numerous: It would encourage state parties to ensure more effective local remedies; promote the development of international jurisprudence which would in turn promote the development of domestic jurisprudence on economic, social and cultural rights; strengthen international accountability; enable the adjudicating body to study concrete cases and thus enable it to create a more concise jurisprudence; help empower vulnerable and marginal groups; and would combat arguments against the justiciability of economic, social and cultural rights. [161]

The next step is the effective implementation of the Optional Protocol, which is challenging, considering its ‘optional’ nature and the continuous existence of objections to the justiciability of economic, social and cultural rights as evidenced in the discussions of the OEWG. There are a number of challenges to the implementation of the Optional Protocol, including: getting states to ratify; accessibility to the mechanism since victims would need to have the financial means to travel to Geneva, Switzerland, where the ESCR Committee is based, should they have to testify during hearings; and ensuring effective implementation of the request for interim measures, and the views and recommendations of the Committee, which are non-binding and left to the political will of states. [162]  The effective implementation of the views and recommendations of the ESCR Committee is another challenge, as is the case with the implementation of the recommendations of other human rights bodies.

Notwithstanding these challenges, the Optional Protocol has been seen as an important mechanism to expose visible economic, social and cultural rights abuses that are usually linked to poverty, discrimination and neglect. [163]  Most importantly, it has brought CESCR into line with other human rights treaties by placing economic, social and cultural rights on an equal footing with civil and political rights, thereby correcting the historical asymmetry between these categories of rights and emphasising their indivisibility and interrelatedness.