Third Open-Ended Working Group to Consider Options Regarding the Elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
Geneva, 6-17 February 2006

Submission Regarding Impact of an Optional Protocol on National Level Implementation of Economic, Social and Cultural Rights
NGO Coalition for an Optional Protocol to the ICESCR
14 February 2006

Madam Chair,

The NGO Coalition believes that an OP-ICESCR would greatly contribute to the development of effective remedies for victims of human rights violations around the world. The mere fact of its adoption would encourage the development of more effective domestic remedies, and the views adopted through individual communications would add coherence increase legal certainty regarding the justiciability of ESC rights across the board.

This mechanism will provide an important check on instances where domestic systems are failing to effectively protect ESC rights obligations. Moreover, because the CESCR recognises that both judicial and programmatic responses are required to implement ICESCR rights, the CESCR would make recommendations in both areas.

The NGO Coalition strongly believes the OP will benefit individuals, States Parties and the international community through:

BENEFIT ONE: Providing an International Remedial Mechanism for the Infringement of ICESCR Rights

The OP-ICESCR will provide individuals and groups with access to international remedies where Covenant rights have been violated. Ideally comprising of a communication's mechanism and an inquiry procedure, the Optional Protocol to the ICESCR would possess the potential to significantly contribute towards the realisation of economic, social and cultural rights as enshrined in the Covenant.

BENEFIT TWO: Identifying and Clarifying State Party ICESCR Obligations

As demonstrated through the first Optional Protocol to the ICCPR, an OP-ICESCR would contribute, through the development of international jurisprudence, to the further understanding of the rights contained in the ICESCR, to the identification of what constitutes a violation of these rights and to the definition of corresponding State Party obligations.

Further, the Optional Protocol would assist in transforming general ICESCR provisions into concrete, tangible and achievable norms. In focusing, through the communications procedure, on specific violations of the rights of the individual, the Committee would provide States Parties with guidance as to their Covenant obligations in actual situations. These recommendations in turn could constitute guidelines for the effective domestic implementation and promotion of economic, social and cultural rights as contained in the Covenant.

BENEFIT THREE: Assisting States Parties in Protecting and Promoting Covenant Enshrined Rights

The elaboration of an OP-ICESCR will encourage States Parties to take steps towards the full implementation of all rights enshrined in the Covenant. This would mark an important step in strengthening the principle that, through ratification, States Parties have committed themselves to progressively realise Covenant rights. Through the promotion of the Optional Protocol’s communication mechanism and inquiry procedure, States Parties would be provided with further opportunities to develop the concept of economic, social and cultural rights at the national level, to increase understanding and awareness of these rights and to remedy any existing inequalities in their laws, policies or procedures. The Optional Protocol will encourage the implementation of all the rights enshrined in the Covenant through progressive changes in national law and policy. Such changes will, in turn, trigger an increased recognition of economic, social and cultural rights at all levels of society and assist all, including the most marginalised, to seek and access justice.

BENEFIT FOUR: Encouraging the Development of Domestic Jurisprudence Concerning Economic, Social and Cultural Rights

The Optional Protocol would provide States Parties with a direct role in the development of international economic, social and cultural rights jurisprudence i.e. a body of case law that could be used by the Committee and others in interpreting the provisions of the Covenant and clarifying State obligations. In turn, international ICESCR jurisprudence would promote the development of domestic jurisprudence on economic, social and cultural rights issues. In deliberating on issues such as the right to health, housing and social security, national level Courts could take judicial notice of international Optional Protocol jurisprudence towards the further domestic recognition of economic, social and cultural rights. In essence, the concept of violations of economic, social and cultural rights, how they should be recognized and interpreted and how it might be remedied will be investigated and documented within national and international tribunals. Such documentation will in turn be vital in influencing the enactment, execution and interpretation of domestic laws or procedures to protect the rights as contained in the Covenant.

BENEFIT FIVE: Strengthening International Enforcement of Economic, Social and Cultural Rights

The OP-ICESCR will serve to strengthen the relationship between States Parties and the Committee by creating an impetus, at the national level, for States to promote the effective national implementation of ICESCR rights. Through this instrument, States Parties will be furnished with incentives to provide detailed information to the Optional Protocol adjudicative body that would serve to strengthen the institutional knowledge of the ICESCR reporting mechanism. Scholars and non-governmental organisations have long noted that one of the major constraints faced by the Committee, in the development of its working practices, has derived from the absence of a provision that requires State Party co-operation beyond the submission of periodic reports. The Optional Protocol would thus lead to a new and more involved relationship between the Committee and States Parties. Given that the Covenant and its Optional Protocol would comprise the sole specific international communications mechanism dedicated to economic, social and cultural rights, this is of the utmost importance, both for the legal development of the rights at the international level, and for the progressive interpretation and enactment of law at the national level.

BENEFIT SIX: Reinforcing the Universality, Indivisibility, Interrelatedness and Interdependence of All Human Rights

Gathering together representatives from over 170 States, the 1993 Vienna World Conference on Human Rights was unequivocal in confirming the universality, interdependence, indivisibility and interrelatedness of civil, cultural, economic, political and social rights. The Vienna Declaration mentioned that “All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.” Given the existence of an international communication's procedure concerning the adjudication of ICCPR rights infractions, the creation of an OP-ICESCR would provide States Parties an excellent opportunity to reinforce the universality, interdependence, indivisibility and interrelatedness of all human rights.

BENEFIT SEVEN: Increase Public Awareness of Economic, Social and Cultural Rights

The OP-ICESCR would place a renewed emphasis on economic, social and cultural rights nationally and internationally. The publication of communications, inquiries and views of the CESCR would serve to promote public awareness, nationally and internationally, of the human rights standards enshrined in the ICESCR. This has been the case with communications submitted under existing complaints procedures and in particular, communications under the OP1- ICCPR.

Thank you Madam Chair.

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