The optional protocol to the international covenant on economic, social and cultural rights: An ex ante assessment of its effectiveness in light of the drafting process

Human Rights Law Review

Volumn 10, Issue 2, 2010, Pages 207-237

  Vandenbogaerde, Arne ^a   Vandenhole, Wouter ^a  

^a UNICEF   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77953905827     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngq004     Document Type: Article

References (59)

1. CESCR, Towards an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 26 March 1993, A/CONF.157/PC/62/Add. 5 at Annex II.
2. World Conference on Human Rights 14-25 June 1993, Vienna Declaration and Programme of Action, 12 July 1993, A/CONF.157/23 at para. 75.
3. Commission on Human Rights (HRC), 18 December 1996, E/CN.4/1997/105.
4. See Committee on Economic, Social, and Cultural Rights, Draft Optional Protocol Providing for the Consideration of Communications, 9 November 1994, E/C.12/1994/12 (prepared by Philip Alston).
5. Arambulo, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights: Theoretical and Procedural Aspects (Antwerp: Intersentia, 1999).
6. Dennis and Stewart, 'Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?', (2004) 98 American Journal of International Law 462.
7. Mahon, 'Progress at the Front: The Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights', (2008) 8 Human Rights Law Review 617.
8. Vandenhole, 'Completing the UN Complaint Mechanisms for Human Rights Violations Step by Step: Towards a Complaints Procedure to the International Covenant on Economic, Social and Cultural Rights', (2003) 21 Netherlands Quarterly of Human Rights 423.
9. See contributions to thematic issue of the Nordic Journal on Human Rights, 27 Nordic Journal on Human Rights (2009).
10. A pre-assessment on the specific issue of extraterritorial obligations was made by Sepulveda in Sepúlveda, 'Obligations of International Assistance and Cooperation in an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights', (2006) 24 Netherlands Quarterly of Human Rights 271.
11. For the latter, see the unsuccessful proposal to raise the number of required ratifications or accessions for the entry into force of the OP to 20 instead of the ten proposed in HRC, Report of the Open-ended Working Group on an optional protocol to the International Covenant on Economic, Social and Cultural Rights on its fourth session, 30 August 2007, A/HRC/6/8 at para. 137; reiterated by Australia and the Netherlands at the first part of the fifth session, see HRC, Report of the Open-ended Working Group on an optional protocol to the International Covenant on Economic, Social and Cultural Rights on its fifth session, 23 May 2008, A/HRC/8/7 at para. 128.
12. It is interesting to note that the current campaign for an Optional Protocol to the Convention of the Rights of the Child 1989 (CRC) is dealing with largely the same issues as the OP-ICESCR. These include the criticism about the possible overlap between existing mechanisms and specialised UN agencies such as UNICEF, the incapacity of the Committee on the Rights of the Child to deal with complaints, the presumption that the Committee on the Rights of the Child would be flooded with complaints, and the question of the added-value of such an Optional Protocol to the CRC for the realisation of children's rights.
13. Commission on Human Rights (HRC) Res. 2003/18, Question of the realization in all countries of the ESC rights contained in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights, and study of special problems which the developing countries face in efforts to achieve these human rights, 22 April 2003, E/CN.4/RES/2003/18 at para. 16.
14. HRC, Report of the Open-ended Working Group to consider options regarding the elaboration of an Optional Protocol to the International Covenant on Economic Social and Cultural Rights on its first session, 15 March 2004, E/CN.4/2004/44 at para. 75. In the report the Chair opted for option (v), above, which had the widest support (para. 75).
15. All members voted in favour except the USA, Qatar, Saudi Arabia, Australia and Bahrain, who abstained HRC Res. 2004/29: Universal Declaration of Human Rights. See also HRC, Question of the realisation in all countries of the Economic, Social and Cultural rights contained in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights, and study of special problems which the developing countries face in efforts to achieve these human rights, 10 February 2005, E/CN.4/RES/2004/29.
16. Several seminars and workshops were also held before the second session, see, for example, European Roundtable on Economic, Social and Cultural Rights, 4 January 2005, E/CN.4/2005/WG.23/CRP.3, as recorded in HRC, Report of the Open-ended Working Group to consider options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights on its second session, 10 February 2005, E/CN.4/2005/52 at para. 3.
17. See infra Section 3A.
18. Further evidence of the important role of this analytical paper is given by the fact that the HRC in 2006 asked for the preparation of a draft optional protocol on the basis of this elements paper, see: HRC, Res. 1/3, On the Open-ended Working Group on an optional protocol to the International Covenant on Economic, Social and Cultural Rights, 29 June 2006, A/HRC/1/3.
19. HRC, Report of the Open-ended Working Group to consider options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights on its third session, 14 March 2006, E/CN.4/2006/47.
20. HRC, Elements for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 30 November 2006, E/CN.4/2006/WG.23/2 (prepared by Catarina de Albuquerque) at para. 60.
21. HRC, Report of the Open-ended Working Group to consider on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights on its fourth session, 30 August 2007, A/HRC/6/8 at para. 129.
22. HRC, Report of the Open-ended Working Group to consider on an Optional Protocol to the International Covenant on Economic Social and Cultural Rights on its fifth session, 23 May 2008, A/HRC/8/7 at 33.
23. See Article 8(4).
24. Compromise Package Proposal on Articles 2, 4, 8 and 21 of 2 April 2008 (on file with authors). The proposal was made by Belgium, Chile, Ecuador, Finland, France, Germany, Mexico, Portugal, South Africa and Spain.
25. Steering Committee of the NGO Coalition for an Optional Protocol, 23 June 2008, on file with authors.
26. These were New Zealand, the USA, Denmark, Canada, the Netherlands, Japan, Poland, Norway, Sweden, Germany, Iran, the UK, China, India, Indonesia and Pakistan.
27. Explicit evidence for this conclusion can be found in the statements of a considerable number of countries in the third committee of the General Assembly, see GA Third Committee, Summary record of the 40th meeting, 19 February 2009, A/C.3/63/SR.40.
28. Langford, 'Closing the Gap? An Introduction to the Optional Protocol to the International Covenant on Economic. Social, and Cultural Rights', (2009) 27 Nordic Journal on Human Rights 1 at 7.
29. See infra section 4.
30. HRC, Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 23 April 2007, A/HRC/6/WG.4/2 at para. 4, and explanatory memorandum. See also request for a comparative summary of existing communications and inquiry procedures and practices included in recommendations of chairperson-rapporteur in the report on the first session in HRC, Report of the Open-ended Working Group to consider options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights on its first session, 15 March 2004, E/CN.4/2004/44 at para. 77.
31. Porter, 'The Reasonableness of Article 8.4 - Adjudicating Claims from the Margins', (2009) 27 Nordic Journal on Human Rights 39 at 44.
32. HRC, Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 23 April 2007, A/HRC/6/WG.4/2 at Annex II.
33. See infra Section 3B.
34. cf. para. 41 (Turkey).
35. Part II of the Covenant contains a general obligation to take steps to the maximum of available resources in order to progressively realise the rights in the Covenant, non-discrimination provisions and provisions on limitations, among others.
36. This point was made specifically on the topic of retrogressive measures.
37. HRC, Revised Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 24 December 2007, A/HRC/8/4/WG/2, at para. 29.
38. CESCR, An Evaluation of the Obligation to Take Steps to the "Maximum of Available Resources" under an Optional Protocol to the Covenant, 10 May 2007, E/C.12/2007/1.
39. In the understanding of the Steering Committee of the NGO coalition, the unreasonableness test would have set a high bar, since the common law Wednesbury unreasonableness test concerns only wholly outrageous acts, see Joint Submission by the International Coalition for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, concerning the revised draft Optional Protocol to the ICESCR presented by the Chairperson-Rapporteur to the fifth session of the Open-Ended Working Group, 4-8 February 2008, Part I, (on file with authors). Moreover, the unreasonableness standard would place the burden of proof on the claimant.
40. Vandenhole, 'Completing the UN Complaint Mechanisms for Human Rights Violations Step by Step: Towards a Complaints Procedure to the International Covenant on Economic, Social and Cultural Rights', (2003) 21 Netherlands Quarterly of Human Rights 423.
41. The Committee has identified unqualified and general obligations for States other than the domestic State to respect and to protect ESC rights, and more specific aspects of an extraterritorial obligation to fulfil.
42. The latter mainly pertains to the core obligations, i.e. obligations to ensure the minimum essential levels of a right: see the analysis in Vandenhole, 'Third State Obligations under the ICESCR: A Case Study of EU Sugar Policy', (2007) 76 Nordic Journal of International Law 73.
43. Coomans, 'Some Remarks on the Extraterritorial Application of the International Covenant on Economic, Social and Cultural Rights', in Coomans et al. (eds), Extraterritorial Application of Human Rights Treaties (Antwerp: Intersentia, 2004) at 192-9.
44. Vandenhole, 'Economic, Social and Cultural Rights in the CRC: Is There a Legal Obligation to Cooperate Internationally for Development?', (2009) 17 International Journal of Children's Rights 23.
45. Cf. Riedel who makes a distinction between international cooperation, which is a legal obligation, and development cooperation, which is not.
46. Craven has made a similar distinction, see Craven, 'The International Covenant on Economic, Social and Cultural Rights', in Hanski et al. (eds), An Introduction to the International Protection of Human Rights: A Textbook (Turku/Åbo: Institute for Human Rights, Åbo Akademi University, 1999) at 108.
47. Article 32 CRPD.
48. See also Vandenhole, 'Economic, Social and Cultural Rights in the CRC: Is There a Legal Obligation to Cooperate Internationally for Development?', (2009) 17 International Journal of Children's Rights 23.
49. GA Res. 45/158, 18 December 1990...
50. Mahon, 'Progress at the Front: the Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights', (2008) 8 Human Rights Law Review 617 at 643.
51. Cassese, International Law, 2nd edn (Oxford: Oxford University Press, 2002) at 389.
52. Scheinin and Langford, 'Evolution or Revolution? Extrapolating from the Experience of the Human Rights Committee', (2009) 27 Nordic Journal on Human Rights 97 at 101.
53. While it is not within the scope of this paper to elaborate on the relevant international law, for a recent and thorough study on this issue, see, for example, Salomon, Global Responsibility for Human Rights: World Poverty and the Development of International Law (Oxford: Oxford University Press, 2007).
54. Compare Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 1 at para. 112 stating: 'The International Covenant on Economic, Social and Cultural Rights contains no provision in its scope of application.' Unfortunately, the Court added: 'This may be explicable by the fact that this Court guarantees rights which are essentially territorial.' We do not subscribe to this position, and fail to see on which sources the Court relied to take its position.
55. Courtis and Sepúlveda, 'Are Extra-Territorial Obligations Reviewable under the Optional Protocol to the ICESCR?', (2009) 27 Nordic Journal on Human Rights 54.
56. HRC, Revised draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 24 December 2007, A/HRC/8/WG.4/2 at Annex II, 39.
57. See Article 4 OP-ICESCR. It should be noted also that instead of the current time limit, delegations considered first a time limit of six months. This was included in the first draft OP.
58. On the other hand, regional human rights systems, in particular the European Convention on Human Rights, do include a time limit, which is limited to six months.
59. NGO coalition in letter to supportive governments, 24 March 2008 (on file with authors); see also: Joint Submission by the International Coalition for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights at para. 3 (on file with authors).