The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights enters into force today. The Protocol was discussed for more than a decade and was finally adopted by the UN General Assembly in December 2008. Yet, it took more than four years to convince 10 countries to ratify it… but eventually it happened.
The OPICESCR grants the UN Committee on Economic, Social and Cultural Rights the capacity to receive and respond to individual complaints against States Parties for the violation of economic, social and cultural rights (find out more here). In 1966 two key international human rights treaties were adopted: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Both of them entered into force in 1976 and both of them have been ratified by a similar number of countries (around 160). Yet, the myth that socioeconomic rights are not really enforceable but rather “general principles” or “inspirational goals for public policy” made a huge difference between the two treaties. While an Optional Protocol was immediately attached to the ICCPR so individuals could lodge their complaints for violations of the rights enshrined in that treaty, no equivalent mechanism was established for the ICESCR. This unjustified discrimination ends today, 5 May 2013.
This is certainly very good news, although only time will tell if the UN Committee on ESCR will meet the expectations. Also, so far only 10 countries have ratified the Optional Protocol: Argentina, Bolivia, Bosnia and Herzegovina, Ecuador, El Salvador, Mongolia, Portugal, Slovakia, Spain and Uruguay. In order to be effective, it is of critical importance that a large number of countries sign and ratify it as soon as possible.
In spite of the relevance of this new mechanism, we must not forget that legal venues are not the only tools, and not even necessarily the most useful ones, to increase respect for socioeconomic rights, achieve their full realisation and promote justice on the ground. Other issues must be analysed creatively: budgets, public debt, active participation of involved communities, etc. In Alicia Yamin’s words, “litigation necessarily resolves relatively narrow issues; underlying structural factors are generally left unaddressed”. Along these lines, Victor Abramovich, former member of the Inter-American Commission on Human Rights, acknowledges that “judicial avenues, far from being the center of the strategy for claiming economic, social and cultural rights, serve to back up other political actions employed to advance the demands for rights in a collective dispute”. The success of litigation at the supranational level depends upon the “ability of social movements and human rights advocates on the ground to exert pressure on authorities to implement the change” (Cavallaro and Brewer). Litigation in economic and social rights must be seen as a means for social justice, and not as an end in itself. Putting human rights activism in an action framework that trespasses mere legal notions is the only way to address the deep causes of the violations that activists are trying to redress. It is not enough to say that human rights violations would never happen as long as international human rights law is respected. Human rights advocates must attempt to understand and address the political, ideological and cultural factors that lie behind the abuses of socioeconomic rights.
In any case, a holistic approach to socioeconomic rights must definitely include strategic litigation, and in this sense the OPICESCR is something human rights advocates must cheer about.
Let me just conclude by borrowing the statement issued by the European Office of Amnesty International on the occasion of the entry into force of the OPICESCR. Amnesty insists that especially in this time of economic crisis, the human rights impact of austerity measures must not be absent from the debate on the financial crisis. “Governments must continue to protect human rights during a recession, particularly as vulnerable communities may be especially at risk. Governments might argue that austerity measures, like public spending cuts, are necessary, but (they are obliged) to balance this with protection for human rights. It is an international obligation to ensure that measures are non-discriminatory, do not disproportionately undermine existing rights, do not hit the most vulnerable and disadvantaged people hardest and do not drive them further into poverty. International law also stipulates that measures must ensure minimum essential levels to guarantee each right, for example nobody should be left homeless, denied access to essential medical care, left hungry or become destitute”.