Human Rights Law Review Advance Access originally published online on November 4, 2008
Human Rights Law Review 2008 8(4):617-646; doi:10.1093/hrlr/ngn031
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Progress at the Front: The Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
*Joint Co-ordinator, Project on Economic, Social and Cultural Rights, Academy of International Humanitarian Law and Human Rights, Geneva, Switzerland; Adjunct Clinical Professor of Law, University of Michigan Law School (claire.mahon{at}graduateinstitute.ch).
The two-decade-long campaign for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) is nearing success. The drafting of the Optional Protocol has been completed, and the Human Rights Council approved the text on 18 June 2008. It is now hoped that the draft OP-ICESCR will finally be adopted by the General Assembly in late 2008, heralding the beginning of a new era in relation to access to international remedies for violations of economic, social and cultural rights (ESC rights). The draft OP-ICESCR establishes a new quasi-judicial function for the Committee on Economic, Social and Cultural Rights (the Committee), allowing it to receive communications from individuals and groups of individuals alleging violations of any of the ESC rights set forth in the ICESCR. It also establishes, inter alia, an inquiry procedure, provides for interim measures to be ordered and establishes a trust fund for the realisation of ESC rights. Some of the contents of its provisions and the procedures it establishes are unique in comparison with other treaty body complaints procedures, and others mirror closely existing provisions in similar protocols and conventions. This article overviews the draft OP-ICESCR, outlining its background and genesis, and detailing some of its most contentious provisions, including the scope of the OP-ICESCR, its locus standi and admissibility provisions, the criteria to be applied by the Committee in its review of the merits and particularly debated issues such as how to take into account the need for international cooperation and assistance. The article then proposes some preliminary assessments regarding the potential success and impact of this important new mechanism.
The author is completing her doctorate on the OP-ICESCR at the Graduate Institute of International and Development Studies. She has attended all sessions of the Open-Ended Working Group on the OP-ICESCR and formerly represented the International Commission of Jurists on the Steering Committee of the NGO Coalition for an OP-ICESCR.