Critics often assert that the International Covenant on Economic, Social and Cultural Rights (ICESCR) is an aspirational document, as it calls for the progressive realization of its provisions to the maximum of States Parties’ available resources. But, while this limiting language persists, the UN High Commissioner for Human Rights and a coalition of leading human rights NGOs have hailed the news that soon the rights enshrined in the ICESCR will become justiciable at the international level. On May 5, 2013, the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (Optional Protocol) will enter into force. Under the Optional Protocol, the Committee on Economic, Social, and Cultural Rights (Committee) will have the power to receive and consider complaints against States Parties from other States Parties as well as individuals or groups within their jurisdiction.
The UN General Assembly adopted the Optional Protocol on December 10, 2008, the sixtieth anniversary of the adoption of the Universal Declaration of Human Rights (UDHR). The UDHR linked civil, political, economic, social, and cultural rights as one universal and interdependent set of rights. But, the Cold War and its East/West divide stymied efforts to translate the UDHR into a single binding treaty. As a result, there arose two core treaties, the International Covenant on Civil and Political Rights (ICCPR) and the ICESCR, with the United States and its allies seeking the superiority of civil and political rights over economic, social, and cultural rights and the Soviet Union and its allies seeking the reverse. As the North/South divide eclipsed the East/West divide at the conclusion of the Cold War, this artificial hierarchy continued. However, as UN High Commissioner for Human Rights Navi Pillay noted, by choosing to adopt the Optional Protocol on the UDHR’s anniversary the General Assembly reaffirmed the equal and interdependent nature of civil, political, economic, social, and cultural rights.
The Optional Protocol entered into force earlier this year when Uruguay entered the necessary tenth ratification, joining Argentina, Bolivia, Bosnia and Herzegovina, Ecuador, El Salvador, Mongolia, Portugal, Slovakia, and Spain. In addition, 32 other States Parties have signed but not yet ratified the Optional Protocol.
The entry into force of the Optional Protocol means the Committee and impacted individuals and groups will soon enjoy an individual complaints procedure similar to the systems in place for the UN treaty bodies overseeing the ICCPR, the Convention on the Elimination of Discrimination Against Women, the Convention Against Torture, the Convention on the Elimination of Racial Discrimination, the Convention on the Rights of Persons with Disabilities, and the International Convention for the Protection from Enforced Disappearance. As Pillay stated, because of this new procedure “a jurisprudence will now be developed that will help define the scope of application of economic, social and cultural rights and outline adequate remedies for victims.”
Under the Optional Protocol, the Committee can receive two types of communications. First, it can receive communications from individuals or groups claiming a violation of a right under the ICESCR. However, the Optional Protocol contains procedures to respect the State Party’s legal system and may only consider communications after the exhaustion of domestic remedies, unless they have been “unreasonably prolonged.” Second, the Committee can consider inter-state communications when a State Party believes that another State Party failed to fulfill its obligations under the ICESCR. Like the individual complaint procedure, the second option requires the exhaustion of domestic remedies before the Committee can take up the issue.
By establishing procedures that defer, in the first instance, to States Parties’ legal systems, the creation of the complaint procedure under the Optional Protocol creates an additional incentive for States Parties to strengthen their legal systems to better ensure the realization of economic, social, and cultural rights. In addition, the Optional Protocol provides a forum for developing jurisprudence concerning standards for economic, social, and cultural rights. Finally, the Optional Protocol, as it increases its ratification count, will serve as a mechanism to further erode the artificial divide and hierarchy between civil and political, and economic, social, and cultural rights. In doing so, it can help move the international human rights system back to the universality and interdependence of the UDHR.