DOCUMENTS AND RESOURCES
Draft Optional Protocol to the ICESCR
U.N. Working Group Report on developing an Optional Protocol to the ICESCR (2004) [pdf]
NGO Coalition Advocacy Kit on the Optional Protocol
What is the Optional Protocol (OP)?
The OP allows individuals to bring complaints about violations of their economic, social, and cultural rights to the attention of the Committee on Economic, Social & Cultural Rights. The Committee is the main governing body for the International Covenant on Economic, Social & Cultural Rights.
Why is it important?
There are three basic reasons why it is important to allow individual complaints under the Covenant:
- First, individuals must have a venue in which to seek justice for ESCR violations. As with other individual complaint mechanisms at the international level, individuals would have to exhaust domestic remedies before being allowed to bring their complaints to the international level. Therefore, for those individuals deprived of national justice, the OP would provide the only available form of justice for ESCR violations.
- Second, the OP would bring ESCR up to the same level as other human rights. Despite a tremendous amount of international rhetoric on the importance of ESC rights, these rights remain the only group of rights without an international individual complaints mechanism. Introducing such a mechanism will put ESCR on par with civil and political rights, and bring meaning to rhetoric.
- Third, an individual complaints mechanism strengthens the body of law surrounding specific human rights. The value of an OP allowing individual complaints is clear from the experience of the International Covenant on Civil and Political Rights (ICCPR). The Human Rights Committee, which monitors the ICCPR, has developed a solid body of jurisprudence relating to specific rights found in the Covenant. That elaboration has strengthened the rights themselves by clearly defining their parameters, and assisted with national advocacy for enforcement of the rights. Economic and social rights have so far been deprived of this opportunity to develop jurisprudence, and an OP would provide such an opportunity.
How would the Optional Protocol work?
As its name states, any Optional Protocol is optional. Governments are not forced to become legally obligated to its terms. An Optional Protocol is a treaty. Governments that support the OP may choose to sign and ratify (or accede, if the signature period has expired) to its terms. Once a government has ratified a treaty, that treaty is legally binding.
Individuals who are nationals of the governments that ratify or accede to the Optional Protocol would have the option of bringing an individual complaint to the attention of the Committee on Economic, Social & Cultural Rights. The procedure would be spelled out by the OP itself, and include certain procedural requirements (for example, the requirement that domestic remedies be exhausted before an individual comes to the Committee). The Committee would then review the complaint and write an opinion. Under the current individual complaint mechanism available for the ICCPR, these opinions are much like judicial decisions. Although they are not legally enforceable the way a domestic court opinion is, the governments concerned have agreed to be legally bound by these decisions.