Home > PUBLICATIONS & RESOURCES > JOURNAL >

Five Years after the Entry of Force of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: Some Observations
May 17,2019   By:CSHRS
Five Years after the Entry of Force of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: Some Observations

SUN Shiyan*
 
Abstract: The Optional Protocol to the International Covenant on Economic, Social and Cultural Right was adopted in 2008 and entered into force in 2013. During the five years after its entry into force, 23 States have ratified the Optional Protocol, and 23 individual communications have been submitted to the Committee on Economic, Social and Cultural Rights. Comparing with the acceptance of individual communication procedures under other core international human rights treaties, the record of ratification of the Optional Protocol is not satisfactory. In its examination of individual communications, the Committee on Economic, Social and Cultural Rights has made detailed reasoning, extensively referred to its previous General Comments, and in case of violations found, suggested both specific and general remedies. In its practice of examining individual communications, the Committee on Economic, Social and Cultural Rights needs to clarify and define the rights under the Covenant and their corresponding obligations, while maintaining its nature and role as a supervisory body, without expanding its competence to an unacceptable extent.

Keywords: International Covenant on Economic, Social and Cultural Rights w Optional Protocol w Committee on Economic, Social and Cultural Rights w individual communication
 
The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (hereinafter the Optional Protocol) was adopted on 10 December 2008 by the United Nations General Assembly Resolution 63/117,[1] and opened for signature on 24 September 2009. By 5 February 2013, 10 States had ratified it. Consequently it entered into force on 5 May 2013, in accordance with Article 18 (1).

In its drafting process, States had various understandings, support or concerns regarding the Optional Protocol; and before it was adopted and entered into force, scholars introduced, analysed and commented on it from various perspectives. In 2018, 10 years after its adoption and 5 years after its entry into force, it is time to review and examine how the Optional Protocol has been implemented and its effects.

This article has five parts. Part I will briefly introduce the drafting process of the Optional Protocol. Part II will analyse the ratification record of the Optional Protocol, especially in comparison to those of other international instruments providing similar mechanisms. Part III will analyse the individual communications submitted under the Optional Protocol, with a focus on three communications the merits of which are examined. Part IV will analyse the features of the individual communications submitted and examined under the Optional Protocol. Part V is the conclusion. All the information contained in the article is by 5 May 2018, unless otherwise indicated.

I.   The Drafting Process of the Optional Protocol

Unlike its sister covenant, the International Covenant on Civil and Political Rights (hereinafter the ICCPR), which has relatively strong mechanisms for implementation – it not only established the Human Rights Committee with specific mandate to monitor the implementation of the ICCPR, and provided for the State reporting system and the inter-State communication mechanism, but also provided for “probably the most significant”[2] mechanism of individual communications, which was set in the Optional Protocol to the ICCPR, adopted and entered into force at the same time with the ICCPR, the implementation mechanisms of the International Covenant on Economic, Social and Cultural Rights (hereinafter the ICESCR or the Covenant) were rather weak. It only provided that the State parties shall report to the Economic and Social Council of the United Nations (ECOSOC) in Articles 16 and 17. Only after the ECOSOC adopted a resolution in 1985 to establish a Committee on Economic, Social and Cultural Rights to undertake the task of monitoring the implementation of the ICESCR,[3] was the ICESCR equipped with a monitoring body consisting of independent experts, similar to other human rights treaty bodies. However, the Committee on Economic, Social and Cultural Rights had only availed itself of the State reporting system, and started to issue General Comments in 1989, following the approach initiated by the Human Rights Committee, but had no competence to examine individual communications. Therefore, there have long been calls for an optional protocol to provide for a system of individual communications for the ICESCR.[4]

On the level of the United Nations, the Committee on Economic, Social and Cultural Rights was the first to examine the possibility of formulating an optional protocol to the ICESCR. The Committee generally discussed the issue of drafting an optional protocol in 1990, adopted an analytical document “Towards an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights” prepared by the then chairperson of the Committee, Philip Alston,[5] and submitted it to the Vienna World Conference on Human Rights held in June 1993.[6] The Vienna Declaration and Programme of Action adopted by the World Conference “encourages the Commission on Human Rights, in cooperation with the Committee on Economic, Social and Cultural Rights, to continue the examination of optional protocols to the International Covenant on Economic, Social and Cultural Rights”.[7] Consequently, the Committee on Economic, Social and Cultural Rights submitted a draft Optional Protocol to the United Nations Commission on Human Rights in 1996, which contained only individual (and group) communication procedure.[8] In one of its resolutions adopted in 2001, the Commission on Human Rights decided to appoint an independent expert to study the issue of drafting an optional protocol to the ICESCR;[9] and decided in a resolution in 2002 to establish an open-ended Working Group to examine the issue.[10] The Working Group was established in 2003, and convened three meetings in 2004, 2005 and 2006, and after Human Rights Council (replacing the Commission of Human Rights in 2006) decided to extend its mandates, convened two meetings in 2007 and 2008, submitted the draft optional protocol it completed to the Human Rights Council.[11] Subsequently, the Optional Protocol to the ICESCR was adopted by the Human Rights Council on 18 June 2008, the Third Committee of the General Assembly on 18 November 2008 and the General Assembly on 10 December 2008, all with consensus rather than being put to vote.

In the drafting process of the Optional Protocol to the ICESCR, governments, international organizations and institutions, experts and scholars, and non-governmental organizations have put forward various views and opinions on almost every article of the draft, which gave rise to many heated debates. Some of the issues were concluded or resolved with the finalization and adoption of the Optional Protocol. For example, only individuals or groups of individuals claiming to be victims of a violation of any of the rights set forth in the Covenant can submit communications (Art. 2), thus those whose rights are not directly affected will not be able to submit communications actio popularis; provided inter-State communication procedure and inquiry procedure – both of them are optional, as well as interim measures; and provide that any communication must be submitted within one year after exhaustion of domestic remedies (Art. 3(2)(a)).There are issues, despite the relatively clear provisions in the Optional Protocol, the implications and effects of which will only be demonstrated in the process of Committee on Economic, Social and Cultural Rights’ actual application of the Optional Protocol. On some other issues that the Optional Protocol is not conclusive or unable to reflect may arise in practice after the entry into force of the Optional Protocol.
II.  The Ratification Record of the Optional Protocol
By 5 May 2018, five years after the Optional Protocol to the ICESCR entered into force, 23 States had ratified this instrument, the earliest of which was Ecuador (ratified on 11 June 2010),while other States parties are (in chronological order): Mongolia, Spain, El Salvador, Argentina, Bolivia, Bosnia and Herzegovina, Slovakia, Portugal, Uruguay, Montenegro, Finland, Gabon, Belgium, Cape Verde, Costa Rica, Niger, Luxembourg, Italy, France, San Marino, Central African Republic and Honduras.
The number itself is of little significance, for it has to be compared with other international instruments providing for similar matters. The first to compare is the Optional Protocol to the ICCPR. While the latter only contains individual communication procedure, the Optional Protocol to the ICESCR also provides for procedures of inter-State communication and inquiry, given the fact that those two procedures will only be effective to those States that have accepted them,[12] the comparison between the different ratification numbers of the two optional protocols can to a large extent represent the different attitudes of States towards the respective individual communication procedure under the two optional protocols. The Annual Report of the Human Rights Committee shows that, by the end of July 1981, namely when the Optional Protocol to the ICCPR was a bit older than five years, it had 25 State parties.[13] It seems only two more State parties than that of the Optional Protocol to the ICESCR. However, taking into account the fact that the ICCPR had merely 66 State parties at that time, while the ICESCR has now 167 States parties, or that 117 out of 170 State parties to the ICCPR have now accepted the Optional Protocol to the ICCPR, it is evident that the Optional Protocol to the ICESCR is much less popular than the Optional Protocol to the ICCPR.

Among the core United Nations human rights treaties, seven others also provide for individual communication procedure, either in the form of an optional protocol or in the form of optional clause contained in the convention concerned. Six individual communication procedures among them have entered into force,[14] and their acceptance are as follows (in order of the date of entry into force): The individual communication procedure under Article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination (adopted in 1965 and entered into force in 1969) has been accepted by 57 out of the 179 States parties to the Convention;[15] the individual communication procedure under Article 22 of the Convention against Torture (adopted in 1984 and entered into force in 1987) has been accepted by 67 out of the 163 States parties to the Convention,[16] and 31 out of 72 State parties accepted the individual communication procedure five years after the Convention and its individual communication procedure entered into force in 1992;[17] the Convention on the Elimination of All Forms of Discrimination against Women (adopted in 1979 and entered into force in 1981) has 189 State parties, out of which 109 have accepted the Optional Protocol, which was adopted in 1999 and entered into force in 2000 and contains an individual communication procedure, while in early 2006, i.e., a little more than five years after the Optional Protocol entered into force, the Convention and its Optional Protocol had 180 and 76 States parties, respectively.[18] There are 177 States parties to the Convention on the Rights of Persons with Disabilities (adopted in 2006 and entered into force in 2008), out of which 92 have accepted the Optional Protocol, which was adopted and entered into force at the same time with the Convention and contains an individual communication procedure,[19] and in 2013, i.e., about five years after the two instruments entered into force, each had 130 and 77 States parties, respectively.[20] The individual communication procedure under Article 31 of the International Convention for the Protection of All Persons from Enforced Disappearance (adopted in 2006 and entered into force in 2010) has been accepted by 22 out of the 58 States parties to the Convention;[21] the Convention on the Rights of the Child (adopted in 1989 and entered into force in 1990) has 196 States parties, out of which 37 have accepted the Optional Protocol, containing an individual communication procedure, which was adopted in 2011 and entered into force in 2014.[22]

It appears that the Optional Protocol to the ICESCR has the lowest level of acceptance compared with the individual communication procedures provided in the above six conventions; even compared with the three individual communication procedures the statistics available for the same period, that is, five years after their entry into force, the record of the Optional Protocol to the ICESCR is still the worst; and even the absolute number of States parties (37) to the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, which has entered into force for only four years, and its proportion of States parties to the Convention on the Rights of the Child (about 19 percent) have also exceeded the number of States parties to the Optional Protocol to the ICESCR and its proportion of States parties to the ICESCR (about 14 percent).
Therefore, although the Optional Protocol to the ICESCR was adopted unanimously by consensus, without calling for a vote, in the Human Rights Council, the Third Committee of the General Assembly or the General Assembly itself, and even United States, which has been extremely hostile to the economic, social and cultural rights, did not deter its adoption by consensus, the ratification after its adoption is far from satisfactory. There have been various reasons why States parties to the ICESCR do not ratify the Optional Protocol: Some countries (for example, many Asian countries) have never accepted any individual communication procedures, and therefore will not ratify the Optional Protocol; some Governments may tend to be “conservative” and do not take seriously the protection and promotion of economic, social and cultural rights; some countries may lack an agreement with respect to the ratification of the Optional Protocol;[23] yet some countries may accept the individual communication procedure for some rights, while hesitate with respect to other rights, while do not wish to accept the Optional Protocol with reservations to certain rights.[24] It is also possible that many State parties to the Covenant, at least those that have accepted the Optional Protocol to the ICCPR and, in particular, the individual communication procedures under the Convention on the Rights of Persons with Disabilities and the Convention on the Rights of the Child – both of which provide for a large number of socio-economic rights, may still be biding their time, waiting to see how the Committee on Economic, Social and Cultural Rights would apply the Optional Protocol before a decision can be made as to ratification.

III. Communications Submitted under the Optional Protocol and Their Consideration

The official human rights website of the United Nations, namely the website of the United Nations Office of the High Commissioner for Human Rights, does not provide systemized and synchronized information on communications submitted under the Optional Protocol and their considerations. However, based on information from various sources, as of 5 May 2018, 23 individual communications submitted to the Committee on Economic, Social and Cultural Rights had been registered and numbered,[25] of which Communications No. 15/2016 and No. 16/2016 had no information (presumably discontinued for some reasons, such as the authors withdrew the complaint); in the remaining 21 communications, the Committee declared 12 inadmissible, adopted Final Views regarding 4 cases, and 5 cases were being under consideration. The 21 communications the information of which is available are against only five States parties: 1 each against Portugal, Luxembourg and Italy, 4 against Ecuador and up to 14 against Spain – where it is clear that the use of the Optional Protocol has been vigorously promoted by some individuals or organizations.

Twelve communications were declared inadmissible for various reasons (several of which were inadmissible for more than one reason). Two communications did not exhaust the domestic remedies and were therefore inadmissible under article 3 (1) of the Optional Protocol: in one of them, the Committee held that it was not sufficient for the author to merely claim that domestic remedies were ineffective, and that he still needed to seek such remedies as required;[26] and in the other one, the Committee noted that the author had not convincingly shown that the domestic remedies mentioned by the State party were ineffective.[27] Ten communications were inadmissible ratione temporis under Article 3(2)(b) of the Optional Protocol, for the alleged violations occurred prior to the entry into force of the Optional Protocol itself and its entry into force to the State concerned, and themselves or their effect did not continue after the date.[28] Seven communications were inadmissible ratione materiae under Article 3(2)(d) of the Optional Protocol, for the complaints related to the matters under the ICCPR and therefore incompatible with the provisions of the ICESCR.[29] Two communications were inadmissible under Article 3(2)(e) of the Optional Protocol, for the complaints therein were manifestly ill-founded or not sufficiently substantiated.[30] These reasons for inadmissibility in general are not substantially different from the practice of the Human Rights Committee in considering the admissibility of individual communications under the Optional Protocol to ICCPR, and therefore do not deserve special attentions. The four cases on the merits the Committee had decided and issued the final views are more interesting to note. They will be briefly commented upon in chronological order of decisions as follows.[31]
The basic facts of the first communication decided on merits by the Committee, I.D.G. v. Spain,[32] are as follows. After the author had missed several mortgage repayments, the lending institution launched a special mortgage enforcement proceeding against her. She however had not received the court’s notice of the proceeding, and therefore was aware of the proceeding only after the court ordered arrangements to be made to auction her mortgaged house. The Committee held that the Spanish courts failed to take all reasonable measures to ensure that the author was informed of the proceedings instituted by the lending institutions, and this inadequate notification resulted in that the author did not have the opportunity to properly defend her right to housing before the court, which constituted a violation of the author's right to housing.

The interesting point of this case is that, it is not exactly a case in which the right to housing was directly violated, but a case in which the author’s right to housing was affected because her procedural right to litigation was not properly guaranteed. The Committee also realised this point and expressly stated that, “the Committee will confine itself to considering whether the inadequate notice given to the author … did or did not significantly affect her right to a defence, such as to entail a violation of the right to housing”. In fact, it may have been more appropriate to submit the case to the Human Rights Committee for consideration under Article 14 (1) of the ICCPR. Article 14 (1) of the ICCPR, unlike the rest of the paragraphs of the article that apply only to criminal cases, applies to all “suit at law”, whereas “[a]ccess to administration of justice must effectively be guaranteed in all such cases to ensure that no individual is deprived, in procedural terms, of his/her right to claim justice”, and therefore “the same procedural rights are to be provided to all the parties…, not entailing actual disadvantage or other unfairness to the defendant”.[33] This case also illustrates the interdependence between the two categories of human rights: the author’s right to a fair trial was not adequately guaranteed, resulting in the violation of her right to housing. It is precisely in this respect that the case did not involve a focal point regarding the justiciability of the economic, social and cultural rights, namely, how a State should, “to the maximum of its available resources”, achieve progressively the full realization of those rights.

The basic facts of the second communication decided on merits by the Committee, López Rodríguez v. Spain,[34] are as follows. The author had received a certain amount of non-contributory disability benefits. During his imprisonment, however, the relevant authorities reduced some of the benefits on the grounds that, for the purpose of calculating the amount of benefits, the cost of the author’s upkeep in prison should be treated as part of his revenue or income. The author claimed that the above facts constitute a violation of his rights to social security on equal terms and without discrimination under articles 2 and 9 of the ICESCR. The Committee held that, the State party did have an obligation to establish non-contributory schemes or other social assistance measures to provide support to those individuals and groups who are unable to make sufficient contributions for their own protection. Nevertheless, in this case, the benefits reduced from the author was actually replaced by his upkeep provided in prison, namely this part of cash benefit was paid to the author with in-kind support; and there was no evidence that replacement had had serious negative effects on the author. The Committee therefore concluded that there was no violation of Article 9 of the ICESCR.

Unlike the I.D.G. case, the right to social security invoked in the López Rodríguez case concerned the use and allocation of resources. In this regard, the Committee on the one hand stated that “the right to social security is of central importance in guaranteeing human dignity for all persons when they are faced with circumstances that deprive them of their capacity to fully realize their Covenant rights”, and therefore, “while the realization of the right to social security carries significant financial implications for State parties, the latter have an obligation to ensure the satisfaction of, at the very least, minimum essential levels of this right enunciated in the Covenant”, on the other hand pointed out that one of the purposes of the Covenant is to protect public resources, “which are necessary for the realization of individuals’ rights” – the reduction of the author’s benefit was therefore a reasonable means of achieving such a purpose, and “[i]n the particular case of non-contributory benefits which draw exclusively on public funds and do not depend on prior contributions by the beneficiary, State parties have a certain amount of discretion to make the most appropriate use of tax revenue with a view to guaranteeing the full realization of the rights recognized in the Covenant”. The fact that the Committee noted that the State parties are to ensure “a minimum essential level of benefits” with respect to the right to social security, while at the same time “have a certain amount of discretion” in the case of non-contributory benefits, is tantamount to a reassurance to the State parties: They don’t need to worry that the Committee will raise rigid requirements that are too high to afford within their resource capabilities. The actual decision of the case by the Committee also supported Spain’s approach to the author’s right to social security.

The basic facts of the third communication decided on merits by the Committee, Ben Djazia and Bellili v. Spain,[35] are as follows. The authors, a married couple, and their children rented a room in a privately owned apartment in Madrid, but refused to leave the room when the rental contract expired, on the grounds that they had no income or alternative accommodation. The lessor then brought a civil proceeding to the court against Ben Djazia for forced eviction on the ground of expiration of contract. The Court ruled that the authors and their children should be removed from the rented room, and the authors and their children were accordingly evicted, being without alternative accommodation or sufficient income to secure other housing. Before the eviction, Ben Djazia had unsuccessfully applied for social housing to the Madrid housing authority a number of times, while the housing authority later sold nearly 3,000 houses to private companies/investment funds. The Committee held that, Spain failed to reasonably explain how it had exhausted all available resources and taken all measures to guarantee the authors’ right to housing, and therefore, the State Party’s eviction of the authors from the rented house without guaranteeing the alternative accommodation constituted a violation of their right to adequate housing.

This case is a typically conceivable case regarding economic and social rights: it involved both the different levels of obligations undertaken by a State party under the ICESCR, and the relationship between the available resources of a State party and its obligations under the Covenant. First, the relationship between the authors and the lessor of the house was of a private law nature. The latter's requirement that the Ben Djazia-Bellili family move out of the rented house after the expiration of the contract could not be attributed to the State and therefore did not directly involve the State's obligation to respect the rights recognised by the Covenant. However, as noted by the Committee, in addition to the obligation to respect the rights recognised by the Covenant, State parties are also obliged to protect individuals from direct or indirect interference by third parties in enjoying these rights. Nevertheless, to prohibit the lessor from requiring the Ben Djazia-Bellili family to move out of the house is obviously not a reasonable measure, which would have affected the lessor's right to property (although it is not a human right recognized by the Covenant). This situation therefore concerned another level of obligation of the State party, namely, the obligation to take all reasonable and necessary measures to enable individuals to effectively enjoy their rights. And in view of the circumstances of the case that the Ben Djazia-Bellili family were unable to afford housing, that obligation will more specifically involve the State party's obligation to provide, that is, for those who do not have the means to obtain alternative housing, the State party must take all reasonable and appropriate measures to provide housing to the maximum of its available resources. This is related to a few more specific issues: whether the State party had taken measures, whether the measures were reasonable and appropriate, and whether it had taken measures to the maximum of its available resources (which will in turn affect the reasonableness and appropriateness of its measures). In the case, however, Spain neither proved that it had taken all reasonable measures to provide housing for the author – the authorities concerned even decided that the Ben Djazia-Bellili family were ineligible for social housing, nor proved that it could not do so with the available resources, while the housing authority even sold a large number of public houses to private companies/investment funds. Therefore, it is not surprising that the Committee found that Article 11 (1) providing for the right to housing had been violated.

Out of the five registered yet pending communications, three are also complaints against Spain regarding the right to housing: Communication No. 9/2015 concerning effective remedy to protect the right to housing from allegedly abusive contracts clauses; Communication No. 19/2016 concerning the forced eviction of a person who was found guilty of usurpation; and Communication No. 23/2017 concerning the eviction of a family that occupied a flat without legal title. One communication, Communication No. 20/2017, concerns Luxembourg, regarding the dismissal of workers union representative under Article 8 of the Covenant. And the last communication, Communication No. 22/2017, concerns Italy, regarding the donation of embryos produced by in vitro fertilization for scientific research under Articles 10, 12 and 15 of the Covenant.

IV. Features of the Individual Communications Submitted and Examined under the Optional Protocol

Despite the fact that, five years after the entry into force of the Optional Protocol, there have not been many cases submitted to the Committee on Economic, Social and Cultural Rights, and even less that had been decided on merits, it is still possible to draw some general observations from those cases.

First, it has been indicated in the communications received and considered by the Committee that the different levels of obligations of State parties under the ICESCR – the obligations to respect, to protect and to fulfil (further divided into promote and provide), which have long been recognized by academia and the Committee,[36] are reflected in the practice of individual communication procedures with two features.

One predictable feature is that very few communications have accused State parties of violating their obligations to respect, that is, of actively infringing the economic, social and cultural rights already enjoyed by the individuals. There once existed a view that civil and political rights required the State to undertake the obligation to respect those rights, namely a negative obligation not to violate those rights, whereas economic, social and cultural rights required the State to undertake the obligation to fulfil those rights, namely a positive obligation to take actions. Although this rigid concept is no longer sustainable, in practice, the difference that the former category of rights mainly involves the obligation to respect, and the latter category of rights mainly involves the obligation to fulfil does exist. It is exemplified by the fact that the majority of individual communications considered by the Human Rights Committee have been related to whether the State parties concerned had breached its obligation to respect. Among the individual communications so far submitted to the Committee on Economic, Social and Cultural Rights, it appears that only López Rodríguez v. Spain could barely be regarded as involving the State's obligation to respect – whether it is reasonable to reduce part of the author's pre-existing disability benefit, while the other communications all involved the other two levels of obligations.

Another perhaps unexpected feature is that a considerable number of communications relate not to the obligation of State parties to fulfil, but to the obligation to protect. With respect to the disputes that whether economic, social and cultural rights are qualified as human rights and whether they are justiciable, one focal point is that the obligation to fulfil, in particular the obligation to provide, mainly involves how the states use their resources to actively realise those rights, which on the one hand would make requirements as to national finance, on the other hand, would be difficult to determine and solve by judicial means. However, not many communications so far submitted have related to the obligation to fulfill, or more specifically the obligation to provide. Rather, there are a number of communications concerning the obligation to protect: in addition to Ben Djazia and Bellili v. Spain, the merits of which was considered by the Committee, a few inadmissible cases also concerned the obligation to protect. The most typical case is Sierra et al. v. Spain.[37] In this case, the two authors, whose mother died after she was hospitalized, alleged that their mother was the victim of medical negligence by the attending physician and the hospital, and therefore the State party violated its obligation to protect their mother’s right to the enjoyment of the highest attainable standard of physical and mental health and to prevent third parties from interfering with the enjoyment of that right. That case was declared inadmissible ratione temporis by the Committee. Nevertheless, once similar cases arise and are considered on their merits in the future, the Committee will have to deal with some difficult issues. In specific, in such medical disputes as the Sierra case, what is the nature and limit of the State party's obligation to protect individuals' right to health; and in general, what is the State party's obligation to protect economic, social and cultural rights from the infringement by third parties. It appears that very few cases submitted to and considered by the Human Rights Committee have involved the obligation to protect. In fact, “the imposition of human rights duties in the private sphere is an underdeveloped area of international human rights law. Few international human rights cases address the area”.[38] Accordingly, how to define the obligation to protect in the field of economic, social and cultural rights, and to develop and enrich the jurisprudence regarding the obligation to protect in the field of human rights, may well become an important contribution of the Committee on Economic, Social and Cultural Rights to human rights law as a whole by way of the individual communication system.

Second, the final views of the Committee on Economic, Social and Cultural Rights on the concluded communications represent three characteristics.

The first is that the Committee has made great efforts to elaborate its views on the substantive issues involved in the communications. In each case, the Committee first outlined the facts it identified, then listed the rights implicated in those facts, elaborated how each related right should be understood and how it applied to every claim raised and ruled admissible in the case in accordance with the provisions of the Covenant, and finally reached a conclusion. The reasoning and explanations of the Committee are far more detailed and forceful than those of early individual communications examined by the Human Rights Committee. This may be because, on the one hand, it is generally more difficult to determine whether the ICESCR has been violated than that of the ICCPR. On the other hand, the Committee may wish to help the State parties to the ICESCR, through solid reasoning and detailed explanations, to more relevantly and accurately understand the approaches of the Committee in applying the Optional Protocol to examine the individual communications, and thereby promote their acceptance of the Optional Protocol.

The second is that the Committee has extensively referred to and used its previous general comments. Due to the fact that there was no individual communication procedure available, the Committee had only two ways to apply and interpret the provisions of the ICESCR: the concluding observations on State parties' reports and the general comments, the latter being the most prominent way for the Committee to elaborate its understandings of the provisions of the Covenant. In the individual communication procedure, the Committee on the one hand may and also need to rely on previous general comments to deal with specific problems that arise in individual communications, on the other hand it may and also need to test and develop its opinions and understandings developed by the general comments in the consideration of individual communications. In this respect, there is a contrast between the practices of the Human Rights Committee and the Committee on Economic, Social and Cultural Rights: the former was able to consider individual communications (from 1977) before it had the opportunity to issue general comments (in 1981), therefore not only are a large number of general comments relatively brief, especially in the early period, but also a large number of contents of many general comments have derived from the practice of considering individual communications, especially later general comments.
The third is that, in its final views finding that the ICESCR was violated, in addition to making specific recommendations as to the remedies to be provided by a State party to the author(s) whose rights have been violated, the Committee also makes general recommendations as to how the State party should improve its practices to comply with its obligations relating to the relevant rights. Although this approach was not initiated by the Committee on Economic, Social and Cultural Rights – the Human Rights Committee has often made comments on these two aspects (without making a clear distinction) and the Committee on the Elimination of Discrimination against Women has always adopted this approach, it is of great significance to the realization of the rights under the Covenant: compared with the situation of civil and political rights, the provisions and practices with respect to the economic, social and cultural rights of the State parties to the Covenant may be less comprehensive and precise, and the general recommendations of the Committee may help the State parties to redress these problems. While at the same time, however, in the Committee's consideration of individual communications, it is most likely to be considered as interfering with the State party's economic and social policies, which was one of the controversies during the drafting of the Optional Protocol. Consequently, how to maintain the necessary tension and delicate balance between redressing individuals’ grievances and requiring the State party to implement its obligations will be one of the priorities of the Committee in its consideration of individual communications.

V.       Conclusion

The Optional Protocol to the ICESCR has been in effect for five years. During these five years, the phenomenon that the ratification of the Optional Protocol being “contagious” among the State parties to the Covenant as envisaged by some scholars has not occurred,[39] neither has the scenario materialized that there is a “flood” of individual communications as worried by some States.[40] Nevertheless, the formulation and adoption of the Optional Protocol remains “a milestone in the history of the universal human rights system”.[41] As stated by the report of the first session of the Working Group, the individual complaints mechanism would “encourage States parties to ensure more effective local remedies; promote the development of international jurisprudence, which would in turn promote the development of domestic jurisprudence on economic, social and cultural rights; strengthen international accountability; enable the adjudicating body to study concrete cases and thus enable it to create a more concise jurisprudence.”[42] That is to say, the significance of the individual communication procedure established by the Optional Protocol is that not only does it provide an avenue of redress for individuals and an error correction mechanism for the State parties to the Optional Protocol, but also it will have a proliferation effect, which is expected to affect the practice of all States parties to the Covenant, and even non-parties, to respect, protect and fulfil economic, social and cultural rights.

Whether the Optional Protocol to the ICESCR can play the role mentioned above depends to a large extent on the practice of the Committee on Economic, Social and Cultural Rights, which has so far been limited to the consideration of individual communications, and the crucial issue of its practice is that if it would be able to develop a coherent and convincing jurisprudence on the rights of the Covenant. In its continuous practice of examining actual cases, the Committee may need to clarify the relatively abstract principles and rules set forth in the Covenant and determine more precise content and scope of the rights and the corresponding obligations under the Covenant. On the other hand, the Committee is after all only the supervisory body of the Covenant. Strictly speaking, neither can the Committee replace the status of the State parties as the lawful interpreters of the Covenant, nor are its views on individual communications legally binding on the State parties. If the Committee, as demonstrated by certain human rights treaty bodies, excessively expands its powers in consideration of individual communications and formulates interpretations and opinions unacceptable to States parties, it will not only affect the effectiveness and authority of the Committee itself, but also have a negative impact on the realization of the object and purpose of the Covenant and the realization of the rights provided therein. The unsatisfactory ratification of the Optional Protocol to date is partly due to the fact that State parties to the Covenant have doubts regarding the inclination and approaches of the Committee. In such a delicate and complex field as economic, social and cultural rights, one aspect for the Committee to carefully consider and appropriately address in its practice of considering individual communications is that how to correctly and properly undertake its responsibilities under the Optional Protocol and work alongside the State parties to promote the realization of the objects and purposes of the Covenant and the rights enshrined therein.

(Translated by SUN Shiyan)


*  SUN Shiyan ( 孙世彦 ), researcher, Institute of International Law, Chinese Academy of Social Sciences.
[1] A/RES/63/117 (5 March 2009).
[2] United Nations, Human Rights Fact Sheet No. 15, Civil and Political Rights: The Human Rights Committee, p. 2 (1991). This expression, however, was deleted in the revised edition of Fact Sheet No. 15.
[3] ECOSOC Res. 1985/17, Review of the Composition, Organisation and Administrative Arrangements of the Sessional Working Group of Governmental Experts on the Implementation of the International Covenant on Economic, Social and Cultural Rights, E/RES/1985/17 (28 May 1985).
[4] Kitty Arambulo, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights: Theoretical and Procedural Aspects (Intersentia – Hart, 1999), Chapter IV.
[5] E/1993/22-E/C.12/1992/2 (1993), Annex IV: “Towards an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights”.
[6] A/CONF.157/PC/62/Add.5 (1993), Annex II: “Towards an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights”.
[7] A/CONF.157/23, para. 75.
[8] E/1997/22-E/C.12/1996/6(1997), Annex IV; E/CN.4/1997/105 (1997), Annex: “Report of the Committee on Economic, Social and Cultural Rights to the Commission on Human Rights on a draft optional protocol for the consideration of communications concerning noncompliance with the International Covenant on Economic, Social and Cultural Rights”. The drafting process at the Committee, see generally, De Wet, Erika, “Recent Development Concerning the Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights”, South African Journal on Human Rights 13 (1997): 514.
[9] E/CN.4/RES/2001/30 (2001), para. 8 (c). The appointed Independent Expert, Hatem Kotrane, completed two reports: E/CN.4/2002/57(2002); E/CN.4/2003/53(2003).
[10] E/CN.4/RES/2002/24 (2002), para. 9 (f). See also, E/CN.4/RES/2003/18 (2002), paras. 12-16.
[11] The drafting work and the documents produced thereof, see, Catarina de Albuquerque, “Chronicle of an Announced Birth: The Coming into Life of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights — The Missing Piece of the International Bill of Human Rights”, Human Rights Quarterly 32 (2010): 144-176.
[12] Among the 23 State parties to the Optional Protocol, 5 have declared to accept the inter-state communication procedure under Article 10 and the inquiry procedure under Article 11: El Salvador, Portugal, Finland, Belgium, San Marino.
[13] A/36/40 (1981), para. 1.
[14] The individual communication procedure under Article 77 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (adopted 18 December 1990, entered into force 1 July 2003, 51 State parties) requires 10 States’ acceptance to be effective. So far only 4 States have done so, the procedure therefore has not entered into force yet.
[15] A/72/18 (2017), paras. 1-2.
[16] A/72/44 (2017), paras. 1, 72.
[17] A/47/44(1992), para. 464.
[18] A/61/38 (2006), paras. 1-2.
[20] CRPD/C/9/2 (2013), para. 1.
[22] United Nations Treaty Collection, accessed August 24, 2018, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11-d&chapter=4&clang=_en.
[23] See, e.g. different opinions on whether Norway should ratify the Optional Protocol, Stein Evju, “Should Norway Ratify the Optional Protocol to the ICESCR? - That is the Question”, Nordic Journal of Human Rights 27 (2009): 83, in favour of ratification; Inge Lorange Backer, “Ideals and Implementation – Ratifying Another Complaints Procedure?”, Nordic Journal of Human Rights 27 (2009): 92, believing the ratification would have negative effect.
[24] There had been debates during the drafting process as to whether the individual communication procedure should apply to all rights under the Covenant or only to some rights (so-called “à la carte” approach). It has shown that even those States recognising in principle the justiciability of economic, social and cultural rights did not accept that the individual communication procedure should apply to all rights under the Covenant. Unlike the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Article 17) or the Optional Protocol to the Convention against Torture (Article 30), the Optional Protocol to the ICESCR does not prohibit reservations. However, what and how reservations should be made is apparently a very complicated issue.
[25] By contrast, by the end of July 1981, namely a little more than 5 years after the Optional Protocol to the ICCPR entered into force, the Human Rights Committee had received 102 individual communications. A/36/40 (1981), para. 395.
[26] A.M.B. v. Ecuador, E/C.12/58/D/3/2014, views adopted on 20 June 2016, paras. 7.5-7.6.
[27] Arellano Medina v. Ecuador, E/C.12/63/D/7/2015, views adopted on 26 March 2018, para. 8.8.
[28] Merino Sierra et al. v. Spain, E/C.12/59/D/4/2014, views adopted on 29 September 2016, paras. 6.6-6.7; V.T.F and A.F.L v. Spain, E/C.12/56/D/6/2015, views adopted on 24 September 2015, para. 4.3; L.A.M.C. v. Spain, E/C.12/56/D/8/2015, views adopted on 24 September 2015, para. 4.3; F.G.M. et al. v. Spain, E/C.12/5/D/11/2015, views adopted on 29 February 2016, para. 4.3; J.M.R.H. et al. v. Spain, E/C.12/58/D/12/2016, views adopted on 20 June 2016, para. 4.3; E.C.P. et al. v. Spain, E/C.12/58/D/13/2016, views adopted on 20 June 2016, para. 4.3; Alarcón Flores et al. v. Ecuador, E/C.12/62/D/14/2016, views adopted on 4 October 2017, paras. 9.5-9.12; A.C.G. et al. v. Spain, E/C.12/60/D/17/2016, views adopted on 2 February 2017, para. 4.3; F.M.B. et al. v. Spain, E/C.12/60/D/18/2016, views adopted on 22 February 2017, para. 4.3; Martins Coelho v. Portugal, E/C.12/61/D/21/2017, views adopted on 6 June 2017, para. 4.2.
[29] V.T.F and A.F.L v. Spain, E/C.12/56/D/6/2015, views adopted on 24 September 2015, para. 4.2; L.A.M.C. v. Spain, E/C.12/56/D/8/2015, views adopted on 24 September 2015, para. 4.2; F.G.M. et al. v. Spain, E/C.12/5/D/11/2015, views adopted on 29 February 2016, para. 4.2; J.M.R.H. et al. v. Spain, E/C.12/58/D/12/2016, views adopted on 20 June 2016, para. 4.2; E.C.P. et al. v. Spain, E/C.12/58/D/13/2016, views adopted on 20 June 2016, para. 4.2; A.C.G. et al. v. Spain, E/C.12/60/D/17/2016, views adopted on 22 February 2017, para. 4.2; F.M.B. et al. v. Spain, E/C.12/60/D/18/2016, views adopted on 22 February 2017, para. 4.2.
[30] Arellano Medina v. Ecuador, E/C.12/63/D/7/2015, views adopted on 26 March 2018, para. 8.8; Martins Coelho v. Portugal, E/C.12/61/D/21/2017, views adopted on 6 June2017, para. 4.3.
[31] The fourth case examined was Trujillo Calero v. Ecuador, E/C.12/63/D/10/2015, the views of which were adopted on 26 March 2018. For now there is only Spanish version of the views available on the OHCHR website, the case therefore is not taken into consideration in the present analysis.
[32] I.D.G. v. Spain, E/C.12/55/D/2/2014, views adopted on 17 June 2015.
[33] HRC General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, CCPR/C/GC/32 (2007), paras. 9 and 13.
[34] López Rodríguez v. Spain, E/C.12/57/D/1/2013, views adopted on 4 March 2016.
[35] Ben Djazia and Bellili v. Spain, E/C.12/61/D/5/2015, views adopted on 20 June 2017.
[36] See, e.g., CESCR General Comment No. 12: The right to adequate food (Art.11), para. 15; CESCR General Comment No. 13: The right to education (Art. 13), para. 46.
[37] Sierra et al. v. Spain, E/C.12/59/D/4/2014, views adopted on 29 September 2016.
[38] Sarah Joseph, “A Rights Analysis of the Covenant on Civil and Political Rights”, Journal of International Legal Studies 5 (1999): 57-74.
[39] Beth A. Simmons, “Should States Ratify? - Process and Consequences of the Optional Protocol to the ICESCR”, Nordic Journal of Human Rights 27 (2009): 64-66.
[40] Martin Scheinin and Malcolm Langford, “Evolution or Revolution? – Extrapolating from the Experience of the Human Rights Committee”, Nordic Journal of Human Rights 27 (2009): 97-108.
[41] Statement by Ms. Louise Arbour, High Commissioner for Human Rights to the Open-ended Working Group on an optional protocol to the International Covenant on Economic, Social and Cultural Rights, 31 March 2008, accessed September 6, 2018, https://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=8688&LangID=E.
[42] Report of the open-ended working group to consider options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights on its first session, E/CN.4/2004/44 (2004), para. 23.

Chinese Dictionary:

@cn_humanrights

For the latest news and analysis from our

reporters and editors:Staff Twitter List>>

E-mail:chinahrs@public.bta.net.cn