The Optional Protocol to the The Optional Protocol to the International Covenant on International Covenant on

Economic, Social and Economic, Social and Cultural RightsCultural Rights

Main issues debated during WGMain issues debated during WG

Are ESCR justiciable?Are ESCR justiciable?

-A majority of States were convinced that the -A majority of States were convinced that the experience of national and regional courts and experience of national and regional courts and mechanisms shows that ESCR can be mechanisms shows that ESCR can be considered justiciableconsidered justiciable

-Some States are still skeptical-Some States are still skeptical

Does the nature of ESCR require Does the nature of ESCR require specific procedural provisions?specific procedural provisions?

There was no consensus to create a collective There was no consensus to create a collective complaints system. The OP follows the path of complaints system. The OP follows the path of similar instruments (OP-CEDAW, OP-CRPD)similar instruments (OP-CEDAW, OP-CRPD)

The OP contains some innovations which reflect The OP contains some innovations which reflect the demand to clarify the the demand to clarify the standard of reviewstandard of review and and to allow only significant cases to be consideredto allow only significant cases to be considered

Should international assistance and Should international assistance and cooperation be reflected in the OP?cooperation be reflected in the OP?

Some innovations in relation to similar Some innovations in relation to similar instruments (OP-ICCPR, OP-CEDAW, instruments (OP-ICCPR, OP-CEDAW, OP-CRPD) were included to reflect OP-CRPD) were included to reflect obligations of int’l cooperation and obligations of int’l cooperation and assistance contained in the ICESCRassistance contained in the ICESCR

ProceduresProcedures

The OP provides for three kinds of The OP provides for three kinds of procedures:procedures:

1) A communications procedure1) A communications procedure

2) An inter-state communications procedure2) An inter-state communications procedure

3) An inquiry procedurre3) An inquiry procedurre

CommunicationsCommunications

The procedure is in general similar to other The procedure is in general similar to other communications procedures: OP-ICCPR, OP-communications procedures: OP-ICCPR, OP-CEDAW, OP-CRPDCEDAW, OP-CRPD

StandingStanding: communications can be submitted by:: communications can be submitted by: --individualsindividuals or or groups of individualsgroups of individuals under jurisdiction under jurisdiction

of a State party, or of a State party, or

-someone on their behalf-someone on their behalf with their consent (unless with their consent (unless justified) justified)

alleging violations of ESCRalleging violations of ESCR

Communications (cont’d)Communications (cont’d) AdmissibilityAdmissibility::

-exhaustion of domestic remedies-exhaustion of domestic remedies

-same case is not and has not been considered by -same case is not and has not been considered by similar proceduresimilar procedure

-within 1 year of exhaustion-within 1 year of exhaustion

-CESCR can declare case inadmissible if if doesn’t -CESCR can declare case inadmissible if if doesn’t reveal that reveal that victim has suffered a clear disadvantagevictim has suffered a clear disadvantage, , unless public interest is involvedunless public interest is involved

Communications (cont’d)Communications (cont’d)

New features::

-Friendly settlement-Friendly settlement

-CESCR can consult relevant documentation -CESCR can consult relevant documentation from other UN and regional bodiesfrom other UN and regional bodies

-Standard of review: “-Standard of review: “reasonablenessreasonableness of steps of steps taken by State”taken by State”

Inter-state communicationsInter-state communications

Similar to procedure established by other Similar to procedure established by other OPs and instrumentsOPs and instruments

Requires Requires opt-inopt-in by State parties involved by State parties involved to be applicableto be applicable

State Party claims that another State Party State Party claims that another State Party is not fulfilling its obligationsis not fulfilling its obligations under the under the Covenant Covenant

Inquiry procedureInquiry procedure

Similar to procedure established by other OPs Similar to procedure established by other OPs and instrumentsand instruments

Requires Requires opt-inopt-in by State party concerned to be by State party concerned to be applicableapplicable

Applicable when CESCR receives reliable Applicable when CESCR receives reliable information indicating information indicating grave or systematic grave or systematic violationsviolations by a State Party of any of the ESCR by a State Party of any of the ESCR set forth in the Covenantset forth in the Covenant

International assistance & International assistance & cooperationcooperation

CESCR may CESCR may transmit to UN agencies and transmit to UN agencies and competent bodies, views or recommendationscompetent bodies, views or recommendations indicating need for technical advice or indicating need for technical advice or assistance or which may assist them in deciding assistance or which may assist them in deciding international measures to achieve progress in international measures to achieve progress in implementation of ESCR implementation of ESCR

Trust fundTrust fund to be established to provide expert to be established to provide expert and technical assistance to States Parties for and technical assistance to States Parties for the enhanced implementation of the ESCR the enhanced implementation of the ESCR

Entry into forceEntry into force

The 10th ratification required for entry into The 10th ratification required for entry into force has been deposited on 5 February force has been deposited on 5 February 2013. The OP will enter into force on 5 2013. The OP will enter into force on 5 May 2013May 2013

Ratifying countries are: Argentina, Bolivia,Ratifying countries are: Argentina, Bolivia,

Bosnia and Herzegovina, Ecuador, El Bosnia and Herzegovina, Ecuador, El

Salvador, Mongolia, Portugal, Slovakia, Salvador, Mongolia, Portugal, Slovakia,

Spain and Uruguay.Spain and Uruguay.