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Optional Protocol to the ICESCR – Are Economic and Social Rights now Justiciable?

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


By Natalie (Man Huen) Wong

Section Editor for Human Rights


Human rights, broadly speaking, ought to be indivisible and interdependent, that violation of some rights for the sake of others is not permitted.[1] However, as the United Nations (UN) had enacted two separate treaties embodying two sets of rights, namely civil and political rights in the International Covenant on Civil and Political Rights (ICCPR) and economic and social rights in the International Covenant on Economic, Social and Cultural Rights (ICESCR), it becomes questionable whether human rights really are indivisible as such. More importantly, this distinction has led to the debate about whether or not economic social rights are justiciable. Following the coming into force of the Optional Protocol of the ICESCR, some have argued that this is evidence of an international consensus that economic and social rights are justiciable just like civil and political rights. This article seeks to argue that the Optional Protocol, despite signalling good progress, is far from proving the existence of an international consensus on the issue. It starts with giving a brief overview of the traditional distinction between civil and political rights and economic and social rights, at the same time defining what “justiciability” means. It then looks at the number of ratifying states of the Optional Protocol and the specific provisions under it. It concludes that the Optional Protocol does not serve as evidence that there is an international consensus on economic and social rights being justiciable.


Distinction between Civil and Political Rights and Economic and Social Rights

As Nolan, Porter and Langford summarize, the traditional classification of rights relies on a few differences: Civil and political rights are regarded as “precise”, whereas economic and social rights are “vague” and “indeterminate”;[2] Civil and political rights impose negative freedoms while economic and social rights give rise to “positive obligations”;[3] Owing to its negative nature, civil and political rights are resource-free, while economic social rights are “resource-dependent”.[4] It should be noted that a lot of these conceptions have been debunked by the authors. For instance, the meaningful realisation of the right to a fair trial, a civil and political right, entails considerable expenditure and resources. Similarly, the right against eviction as an economic and social right, operates more like a negative freedom than a positive obligation.


Nevertheless, because economic and social rights are alleged to be vague, courts and the judicial forum are deemed as inappropriate actors to interfere with government’s socio-economic policies, hence the idea of economic and social rights being unjusticiable.[5] Simply put, it is held that courts should not be able to pronounce on economic and social rights.


The following paragraphs analyse whether or not the Optional Protocol’s entry into force means that economic and social rights are now considered justiciable in the sphere of international human rights.



Number of Ratifying States

The Optional Protocol came into effect in 2013, almost four decades after the ICESCR became effective. In essence, it establishes a complaint mechanism for individuals to bring complaints to the Committee on Economic and Social Rights when their economic and social rights are violated. As Mahon contends, to assess the success of the Optional Protocol, one can look at the number of ratifying states.[6] It is noted by Nolan, Porter and Langford that social and economic rights are now more frequently and commonly litigated directly before national courts and regional bodies,[7] so one can reasonably expect a large number of ratifications of the Optional Protocol, and that economic and social rights are widely accepted as justiciable. Yet, the reality is that it is not as widely ratified as originally envisaged. As of February 2021, only 26 state parties have ratified it, and almost 150 states have yet to take any action.[8] In spite of an increasing number of countries that include economic and social rights in their constitutions,[9] these are not reflected in the number of ratifying states in the international plane. If states are unwilling to accept its obligations on an international level, it is hard to see how they would adhere to the standards in the domestic context. It follows that, just by looking at the statistics, the fact that the Optional Protocol entered into force does not point to the conclusion that there is an international consensus that economic and social rights are considered justiciable. There remains great resistance from many states, including more developed states like the US, the UK, Australia, to the recognition of full justiciability of economic and social rights.


Specific Provisions of the Optional Protocol

This section looks at two particular provisions under the Optional Protocol which arguably hinder its effectiveness. It is worth noting that lots of compromises were made during the drafting process,[10] demonstrating the lack of consensus on the issue from early on. In fact, it can be argued that this resulted in the coverage and scheme of the Optional Protocol not being as wide and radical as it could be.


A. The Reasonableness Test

Article 8(4) of the Optional Protocol stipulates that “[w]hen examining communications under the present Protocol, the Committee shall consider the reasonableness of the steps taken by the State Party”. In effect, the clause provides a clear standard of review for the Committee. More importantly, it serves as the embodiment of the principle of progressive realisation provided for in Article 2(1) of the ICESCR. The obligation of progressive realisation is said to be a central feature of the ICESCR, as it acknowledges the fact that not all economic and social rights can be immediately realized in different parts of the world, especially when some states are not as financially able and resourceful to comply with the obligations.[11] In other words, state parties are only required to demonstrate that they are taking appropriate steps to do so. Therefore, the explicit inclusion of a reasonable standard means that a significant amount of discretion is given to state parties, who can simply say they do not have the required resources to actualize economic and social rights. In fact, it is precisely the state parties’ concern that the Committee would overstep its limits and “intrude … in matters of public policy” that resulted in the reasonableness standard being adopted in the final wording of Article 8(4).[12] From the outset, the Optional Protocol is never intended to make economic and social rights fully justiciable in the international law realm. In Mahon’s words, the effect of these clauses would be to make justiciability “difficult, if not impossible, at the universal level”.[13]


B. The Clear Disadvantage Clause

Article 4 of the Optional Protocol states that “[t]he Committee may, if necessary, decline to consider a communication where it does not reveal that the author has suffered a clear disadvantage”. Despite the fact that victims of violations of economic and social rights are the targeted beneficiary of the individual communications procedure,[14] this clause deliberately limits access to the mechanism. By way of illustration, the locus standi for non-governmental organisations (NGOs) to directly bring claims is intentionally excluded.[15] The impact of this is exacerbated by the requirement of the exhaustion of domestic remedies stated in Article 3(2)(a) of the Optional Protocol. The unfortunate reality is that the most vulnerable victims of economic and social rights are not equipped with the resources to access domestic remedies, nor have the awareness to file a petition on the international level.[16] The work of NGOs to bridge the gap between grassroots victims and “international redress mechanisms” is significantly hampered by the clause. After all, not only does this show a lack of awareness of the hardships faced by a majority of victims of economic and social rights, but it also illustrates the mild approach taken by the drafters to make sure that any interference with state parties’ domestic affairs is kept to a minimum. In a way, this is telling evidence that there exists no firm international consensus on the justiciability of economic and social rights. Had this not been the case, the Optional Protocol would have adopted a more radical and inclusive approach, rather than denying certain disadvantaged groups access to the international complaint mechanism.


Conclusion

Summing up, although the traditional misconceptions of civil and political rights on one hand, and economic and social rights on the other, have been denounced by scholars, states in different parts of the world still have varying views regarding the justiciability of economic and social rights and the role of judges in this area of law. Many continue to worry about the democratic legitimacy and institutional capacity of the judiciary in making decisions on issues of resource allocation.[17] These concerns and disagreements manifested in the form of compromises in the Optional Protocol. Thus, the number of ratifying states and the specific provisions operate in a way to demonstrate that the international law forum nowhere near to reaching a consensus on the justiciability of economic and social rights. Only when states are willing and prepared to take on more onerous obligations in giving effect to economic and social rights can one say that the justiciability of economic and social rights is no longer called into question.


 

Image: Office of the High Commissioner for Human Rights, ‘Map on Ratification of the International Covenant on Economic, Social and Cultural Rights’ <https://indicators.ohchr.org/> accessed 22 February 2021

[1] Michael Freeman, Human Rights: An Interdisciplinary Approach (2nd edn, Polity 2011) 33 [2] Aoife Nolan, Bruce Porter and Malcom Langford, ‘The Justiciability of Social and Economic Rights: An Updated Appraisal’ (2007) CHRGJ Working Paper No.15, 9 [3] ibid 7 [4] ibid 8 [5] ibid 2 [6] Claire Mahon, ‘Progress at the Front: The Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’ (2008) 8 Hum Rts L Rev 617, 643 [7] Nolan, Porter and Langford (n 2) 1 [8] Office of the High Commissioner for Human Rights, ‘Status of Ratification Interactive Dashboard: Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’ <https://indicators.ohchr.org/> accessed 22 February 2021 [9] Nolan, Porter and Langford (n 2) 1 [10] Mahon (n 6) 631 [11] Helena Hofbauer, ‘Budgeting for Human Rights: Progressive Realization’ (International Budget Partnership, 22 September 2014) <https://www.internationalbudget.org/2014/09/budgeting-for-human-rights-progressive-realization/> accessed 22 February 2021 [12] Irene Biglino and Christophe Golay, ‘The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’ (2013) Geneva Academy of International Humanitarian Law and Human Rights, Academy in-brief No. 2, 26 [13] Mahon (n 6) 636 [14] Rebecca Brown, Malcom Langford, Bruce Porter and Julieta Rossi, ‘Introduction’ in Rebecca Brown, Malcom Langford, Bruce Porter and Julieta Rossi (eds) The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: A Commentary (PULP 2016) 4 [15] Mahon (n 6) 646 [16] ibid [17] Nolan, Porter and Langford (n 2)



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