The Optional Protocol to
the International Covenant
on Economic, Social and
Cultural Rights
Main issues debated during WG
 Are
ESCR justiciable?
-A majority of States were convinced that the
experience of national and regional courts and
mechanisms shows that ESCR can be
considered justiciable
-Some States are still skeptical
Does the nature of ESCR require
specific procedural provisions?

There was no consensus to create a collective
complaints system. The OP follows the path of
similar instruments (OP-CEDAW, OP-CRPD)

The OP contains some innovations which reflect
the demand to clarify the standard of review and
to allow only significant cases to be considered
Should international assistance and
cooperation be reflected in the OP?
 Some
innovations in relation to similar
instruments (OP-ICCPR, OP-CEDAW,
OP-CRPD) were included to reflect
obligations of int’l cooperation and
assistance contained in the ICESCR
Procedures

The OP provides for three kinds of
procedures:
1) A communications procedure
2) An inter-state communications procedure
3) An inquiry procedurre
Communications

The procedure is in general similar to other
communications procedures: OP-ICCPR, OPCEDAW, OP-CRPD
 Standing: communications can be submitted by:


-individuals or groups of individuals under jurisdiction
of a State party, or
-someone on their behalf with their consent (unless
justified)
alleging violations of ESCR
Communications (cont’d)

Admissibility:
-exhaustion of domestic remedies
-same case is not and has not been considered by
similar procedure
-within 1 year of exhaustion
-CESCR can declare case inadmissible if if doesn’t
reveal that victim has suffered a clear disadvantage,
unless public interest is involved
Communications (cont’d)

New features:
-Friendly settlement
-CESCR can consult relevant documentation
from other UN and regional bodies
-Standard of review: “reasonableness of steps
taken by State”
Inter-state communications
 Similar
to procedure established by other
OPs and instruments
 Requires
opt-in by State parties involved
to be applicable
 State
Party claims that another State Party
is not fulfilling its obligations under the
Covenant
Inquiry procedure

Similar to procedure established by other OPs
and instruments

Requires opt-in by State party concerned to be
applicable

Applicable when CESCR receives reliable
information indicating grave or systematic
violations by a State Party of any of the ESCR
set forth in the Covenant
International assistance &
cooperation

CESCR may transmit to UN agencies and
competent bodies, views or recommendations
indicating need for technical advice or
assistance or which may assist them in deciding
international measures to achieve progress in
implementation of ESCR
 Trust fund to be established to provide expert
and technical assistance to States Parties for the
enhanced implementation of the ESCR
Entry into force
 The
10th ratification required for entry into
force has been deposited on 5 February
2013. The OP will enter into force on 5
May 2013
 Ratifying countries are: Argentina, Bolivia,
Bosnia and Herzegovina, Ecuador, El
Salvador, Mongolia, Portugal, Slovakia,
Spain and Uruguay.