Promoting a Complaints and Adjudication Procedure for Social Rights at the International Level: the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

A major initiative in developing new social rights accountability mechanisms at the international level was the drafting of and eventual adoption at the UN General Assembly on December 10, 2008, of a complaint and adjudicative procedure under the International Covenant on Economic, Social and Cultural Rights (ICESCR). This mechanism is called the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.

The lead researcher in this area is Bruce Porter and the Social Rights Advocacy Centre. SRAC has been a member of the Steering Committee of the NGO Coalition for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR) a global coalition of NGOs working in the area of economic, social and cultural rights which was formed to promote the idea of an optional complaints mechanism under the ICESCR.

A complaints mechanism has existed under the International Covenant on Civil and Political Rights since it came into force in 1976. The absence of a complaints mechanism for economic, social and cultural rights represented a longstanding inequality between the two sets of rights in the UN system. Despite widespread reluctance and skepticism at the outset of this process, the Coalition celebrated an historic success on December 10, 2008 when the UN Human Rights Council adopted by consensus an Optional Protocol to the ICESCR providing for a complaints mechanism, as well as an inquiries procedure. States that have signed the OP-ICESCR

SRAC played a key role in the United Nations Open Ended Working Group mandated to consider draft the new Optional Protocol. One of the key areas of negotiation in the OP-ICESCR related to the standard of review to be used.

See: Bruce Porter, The Reasonableness Of Article 8(4) – Adjudicating Claims From The Margins,' Nordic Journal of Human Rights (NJHR), Vol. 27, No.1:2009.

See also: "A Toolkit for Action" by the NGO Coalition for an OP-ICESCR:

The Rules of Procedure for the OP-ICESCR

The Committee on Economic, Social and Cultural Rights recently adopted its rules of procedure for adjudicating petitions under the ICESCR. It will be critically important for the CESCR to ensure that individuals and groups most affected by ESC rights violations have access to the communications procedure, and that the Committee has access to the information and expertise necessary. It will be important, for example, to ensure that the Committee may benefit from third party or amicus submissions.

SRAC assisted the NGO Coalition for the OP-ICESCR on important issues to consider in drafting rules of procedure. The paper entitled: Considerations of the International NGO Coalition for an OP- ICESCR in relation to the OP-ICESCR and its Rules of Procedure was circulated amongst members of the Coalition and groups with relevant ESCR expertise, and further revised and focused for presentation to the CESCR in Geneva.

Bruce Porter represented the Steering Committee of the Coalition in making an oral presentation to the CESCR and presenting the substantive paper outlining developments in international law and drafting history of the OP. A luncheon meeting was hosted to which Committee members were invited to discuss issues such as interim measures, friendly settlements, reasonableness, amicus curiae and standing. A follow-up briefing to the CESCR on rules of procedure for the OP-ICESCR was developed.

Cases on Economic, Social and Cultural Rights - Adjudication and Justiciability of ESC Rights

SRAC is a partner in the research and development of a caselaw database sponsored by ESCR-Net, the international Network on Economic, Social and Cultural Rights. The database includes critical jurisprudence, cases, background material, case pleadings and secondary literature on social rights cases from around the world. SRAC was also a member of the Steering Committee responsible for planning ESCR-Net’s International Strategy Meeting on ESCR in Nairobi, Kenya December 1 - 4, 2008.

CURA Community Co-Director, Bruce Porter was involved with developing a proposal for international coordination of strategic litigation under the OP-ICESCR, in conjunction with the NGO Coalition for an OP-ICESCR. The proposal was discussed in detail during a workshop held in New York City from October 12-13, 2010. At the workshop, ESC experts from around the world discussed the proposal and considered how to develop an international strategic litigation initiative. In 2011, the initiative was launched. Amicus briefs have been developed for cases in Kenya and South Africa. Meeting have been hosted in a number of countries around the world to develop strategic litigation initiatives. For more information on the ESCR Strategic Litigation Initiative click here.

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