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 theireconomic, social, and cultural rights to the attention of the Committeeon Economic, Social & Cultural Rights. The Committee is the maingoverning 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 internationallevel, individuals would have to exhaust domestic remedies before beingallowed to bring their complaints to the international level.Therefore, for those individuals deprived of national justice, the OPwould 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 internationalindividual 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 oflaw surrounding specific human rights. The value of an OP allowingindividual complaints is clear from the experience of the InternationalCovenant on Civil and Political Rights (ICCPR). The Human RightsCommittee, which monitors the ICCPR, hasdeveloped a solid body of jurisprudence relating to specific rightsfound in the Covenant. That elaboration has strengthened the rightsthemselves by clearly defining their parameters, and assisted withnational advocacy for enforcement of the rights. Economic and socialrights have so far been deprived of this opportunity to developjurisprudence, 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. AnOptional Protocol is a treaty. Governments that support the OP maychoose to sign and ratify (or accede, if the signature period hasexpired) to its terms. Once a government has ratified a treaty, thattreaty is legally binding.
Individuals who are nationals of the governments that ratify oraccede to the Optional Protocol would have the option of bringing anindividual complaint to the attention of the Committee on Economic,Social & Cultural Rights. The procedure would be spelled out by theOP itself, and include certain procedural requirements (for example,the requirement that domestic remedies be exhausted before anindividual comes to the Committee). The Committee would then review thecomplaint and write an opinion. Under the current individual complaintmechanism available for the ICCPR, theseopinions are much like judicial decisions. Although they are notlegally enforceable the way a domestic court opinion is, thegovernments concerned have agreed to be legally bound by thesedecisions.