UN General Assembly Adopts the Optional Protocol to ICESCR

On 10 December the UN General Assembly at its plenary meeting unanimously adopted an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. The Protocol is undoubtedly a milestone in the history of the universal human rights system. It aims to achieve progressively the full realization of the rights recognized in the Covenant. The adoption took place on a very special occasion – on the day of the sixtieth anniversary of the adoption of the Universal Declaration of Human Rights.

The Protocol gives any individual or group, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant by that State Party the right to submit a written communication for examination by the Committee on Economic, Social and Cultural Rights based in Geneva.

It is well known that the legal nature of the so called second generation of human rights has been challenged and criticized by numerous scholars. One of the drafters of the Protocol, a renowned human rights expert and member of the Committee on Economic, Social and Cultural Rights, Professor Dr. Eibe Riedel rejects the view that economic, social and cultural rights are mere aspirations and policy guidelines. In his opinion, the Covenant is a legally binding instrument under international law. The absence of remedies may weaken the real enjoyment of these rights, but it does not derogate them from their quality as rights. He also rejects the argument that economic, social and cultural rights are essentially different from civil and political rights. Both sets of rights contribute equally to the protection of human dignity. Undeniably, the adoption of the Protocol reflects that international community is well aware of its obligation to promote economic, social and cultural rights.

Based on the Protocol, the Geneva-based Committee on Economic, Social and Cultural Rights (CESCR) is given an important role in human rights monitoring. Since its establishment in 1985 the Committee has played an enormously important part in monitoring the implementation the International Covenant on Economic, Social and Cultural Rights. But the Protocol represents another milestone in such role – once the Protocol enters into force, the Committee shall be entitled to examine individual complaints. Up to now it has „only” been entitled to examine reports of States parties and address its concerns and recommendations to the State party in the form of concluding observations. Protocol thus brings an important material change. The Committee shall be entitled, inter alia, to the following activities:

Firstly, it shall make available its good offices to the parties concerned with a view to reaching a friendly settlement.

Secondly, it may, at any time after the receipt of a communication and before a determination on the merits has been reached, transmit to the State Party concerned a request that the State Party take such interim measures as may be necessary in exceptional circumstances to avoid possible irreparable damage to the victim or victims of the alleged violations.

Thirdly, after examining a communication, in the light of all documentation submitted to it, the Committee shall transmit its views on the communication, together with its recommendations, if any, to the parties concerned. In such situations, State Party shall give due consideration to the views of the Committee, together with its recommendations, if any, and shall submit to the Committee, within six months, a written response, including information on any action taken in the light of the views and recommendations of the Committee.

Fourthly, under specific conditions of Article 10 of the Protocol, it may have competence to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the Covenant. Such Communications may be received and considered only if submitted by a State Party that has made a declaration recognizing in regard to itself the competence of the Committee.

Fifthly, Committee shall invite that State Party to cooperate in the examination if it receives reliable information indicating grave or systematic violations by a State Party of any of the economic, social and cultural rights set forth in the Covenant. To this end the Committee may designate one or more of its members to conduct an inquiry and to report urgently to it. Where warranted and with the consent of the State Party, the inquiry may include a visit to its territory.

Sixthly, the Committee may also bring to the attention of United Nations specialized agencies, funds and programs and other competent bodies, with the consent of the State Party concerned, any matter arising out of communications considered under the Protocol which may assist them in deciding, each within its field of competence, on the advisability of international measures likely to contribute to assisting States Parties in achieving progress in implementation of the rights recognized in the Covenant.

The Committee is an expert body composed of 18 independent experts who are persons of high moral character and recognized competence (mostly university professors or diplomats) in the field of human rights.  

The Protocol shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the tenth instrument of ratification or accession. Any State Party may denounce the Protocol at any time by written notification addressed to the Secretary-General of the United Nations. Denunciation shall take effect six months after the date of receipt of the notification by the Secretary-General.