Optional Protocol to the ICESCR: An Opportunity for Strategic Litigation to Shape the Human Rights Framework
By Bret Thiele
Article originally published in Forjib, Law Journal www.forjib.org
With the adoption and entry into force of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (Optional Protocol) the world realized a substantial victory of human rights. Finally, economic, social and cultural rights benefited from a complaint mechanism at the international level, thereby further reaffirming that all human rights, be they civil, cultural, economic, political or social in nature, are legally enforceable or justiciable. This victory furthered the vision, and requirement, of the Vienna Declaration on Human Rights that all human rights be treated globally in a fair and equal manner, on the same footing, and with the same emphasis.
This victory, of course, is more than symbolic. The Optional Protocol creates an important and practical human rights mechanism that, if used effectively by civil society, not only creates increased access to justice, accountability and remedies for violations of economic, social and cultural rights but opens avenues for remedies for structural and systemic violations of such rights and thus has the potential for truly transformative change.
The Optional Protocol provides two key procedures by which individuals, groups and non-governmental organizations can seek to enforce economic, social and cultural rights enshrined in the ICESCR, namely a Complaint, or Communication, procedure and an Inquiry Procedure.
Effective use by civil society is of course crucial in order to achieve desired results, but effective use in the early stages of litigation under the Optional Protocol is especially crucial as the jurisprudence created in these early stages will outline the scope of possibilities under the Optional Protocol and lay the foundation for future advocacy for years to come. Consequently, those using the Optional Protocol should craft their arguments in such a way that the emerging jurisprudence broadly encompasses a comprehensive and holistic view of all aspects of economic, social and cultural rights, including all three general obligations to respect, to protect and to fulfill Covenant rights and to do so without discrimination.
One way to ensure that the Optional Protocol is used effectively is for those bringing Complaints under the Optional Protocol to think creatively and strategically, including with respect to all the legal and practical implications of using this new mechanisms. It is also important for those bringing Complaints to work collaboratively and communicate with each other as complaints and legal arguments are developed and ultimately advocated before the Committee on Economic, Social and Cultural Rights.
A useful tool in this regard is the publication Claiming ESCR at the United Nations: a manual on utilizing the OP-ICESCR in strategic litigation (OP-ESCR Manual) recently published by ESCR-Net. The objective of this Manual is to provide theoretical and practical information for lawyers and other advocates interested in utilizing the OP-ICESCR as a means to enforce economic, social and cultural rights. The OP-ESCR Manual provides detailed information on how to effectively use both the Complaint and Inquiry procedures created by the Optional Protocol. It also includes examples of comparative legal arguments, strategies and jurisprudence from other international human rights enforcement mechanisms. It offers advice on crafting Complaints and on strategies to ensure that the cases brought forward under the Optional Protocol enhance the efficacy of the International Covenant on Economic, Social and Cultural Rights and advance access to justice, accountability and remedies for the comprehensive range of violations of Covenant rights.
The OP-ESCR Manual not only covers the content of procedural and substantive rights under the International Covenant on Economic, Social and Cultural Rights, but also strategic and tactical advice related to drafting Complaints and requesting Inquiries. It also offers suggestions related to advocacy before the Committee and follow up work to ensure implementation of good decisions coming out of the Optional Protocol processes as well as complementary strategies that can be used throughout the process including strategies related to media and public awareness, social mobilization and political advocacy, and utilization of other international procedures.
Finally, the OP-ESCR Manual provides information on individuals and organizations, including those involved in the ESCR-Net Strategic Litigation Working Group, made up of advocates engaged in legal enforcement of economic, social and cultural rights in other contexts, both domestically and internationally, as well as those involved with the NGO Coalition for the OP-ICESCR, which led NGO efforts towards the drafting and subsequent adoption of the Optional Protocol and now focuses on the ratification and implementation process of this treaty. This information serves as a catalyst to form broader networks of advocates using the Optional Protocol mechanism so that collaborative and complementary work can be undertaken that ensures the future success and potential of this new avenue for enforcement of human rights.
So, as advocacy using the Optional Protocol now begins, it is hoped that that advocacy is carefully crafted with the enormous impact of resulting jurisprudence in mind. And it is hoped that the OP-ESCR Manual and the experiences of a broad network of economic, social and cultural rights advocates can be brought to bear to ensure that that impact is positive, the result of careful and strategic planning and execution and, most importantly, truly transformative.
Bret Thiele is a Co-Executive Director of the Global Initiative for Economic, Social and Cultural Rights. He is a co-author of the publication Claiming ESCR at the United Nations: a manual on utilizing the OP-ICESCR in strategic litigation as well as a member of the Steering Committee of the ESCR-Net Strategic Litigation Working Group and a member of the NGO Coalition for the OP-ICESCR.