Over the past five decades, 161 countries have ratified the UN-backed treaty called the International Covenant on Economic, Social and Cultural Rights. As a result, some regional bodies and national courts have adopted laws protecting rights that are sometimes taken for granted. They include the right to work, and the right to basic levels of education, food, shelter and health care.
Today, human rights activists are calling for the signing of a side-agreement to the treaty. It would allow individuals to appeal to the international community if member states of the covenant do not take action to resolve their complaints.
Most of the time, complaints are settled by national courts. However, in exceptional cases the new mechanism, called the Optional Protocol to the covenant
, would allow individuals to appeal to a treaty committee in Geneva. The 18-member independent panel is called the UN Committee on Economic, Social and Cultural Rights.
Odindo Opiata is the executive director of the Economic and Social Rights Center [or “Hakijammii” in Swahili] in Nairobi. It’s a national human rights organization that works to create awareness of these rights, and advocates for their implementation both domestically and internationally.
"The Optional Protocol," he says, "provides quite an important alternative for those individuals who are dissatisfied or find it inadequate in terms of the level of protection, level of enforcement that is available at the domestic level. Quite a number of African countries now have constitutional recognition of many of those [economic, social and cultural] rights, with domestic tribunals to enforce them. But, there is still quite a bit of a gap in [the domestic jurisprudence on economic and social rights that would help] ensure these rights [yield] tangible benefits [for the victims of violations]."
Individual cases could have ramifications for a whole community.
Opiata says for example that a poor resident from an informal settlement in an urban area might complain before the national courts – or to the committee -- about unequal access to adequate housing, health, water and sanitation.
"The conditions in which they live attract quite a bit of attention," he explains, "because they are much lower than one would expect in any other urban setting. So it’s one area that could be of some interest in terms of trying to find out the extent to which the state obligation can be determined… whether the government is doing enough …putting maximum resources trying to improve the livelihood of people living under these conditions."
He adds that domestic courts are not always willing to order government to take specific actions to remedy such situations. The Optional Protocol, he says, is an ideal way for individuals to seek justice at the international level, where extensive jurisprudence has been developed.
He adds that the protocol can also help governments take preventive measures by allowing an inquiry into systematic violations of social, economic and cultural rights. He says the procedure will assist governments and policy makers in clarifying the meaning and scope of their obligations under the treaty.
Ian Seiderman, the legal and policy director of the International Commission of Jurists, says that according to the rules, an individual can appeal to the treaty’s committee for up to one year after exhausting all domestic remedies.
He explains the procedure followed by the committee after it has investigated a case and has found a violation of economic, social, or cultural rights.
Recommendations and remedies
"If a violation in their opinion had occurred," he says, "they might recommend broad means of remedying it, but I would be surprised to find them getting into the nuts and bolts of, for instance, spending [a prescribed] number of dollars on health in [a government’s] budget. They might recommend that more resources generally are made available, but not at the level of exact prescriptions."
Seiderman says the findings of the committee are not legally binding but a government that has signed the Optional Protocol would probably take them seriously. A state that has ratified the protocol is legally obligated to respect committee resolutions and recommendations.
Supporters say the existing treaty – and its protocol – could help lift living standards – by ensuring that states address systemic violations of economic, social and cultural rights that contribute to poverty. They note that in many countries national courts and regional bodies have ordered remedies for equal access to education or for a cessation of forced evictions for disadvantaged groups.
For example, in 2009, the African Commission on Human and People’s Rights found that forced evictions from Darfur, Sudan, violated several rights, including the right to adequate housing. And in 2001, the African Commission ruled that the Nigerian government failed to protect the rights of the Ogoni people to have a healthy environment not preventing Shell oil company from polluting.
Undue burden denied
Some critics say the treaty and protocol usurp the role of governments and legislatures in setting policies. And they say a remedy imposed by the committee could mean a financial burden for states. But supporters say the treaty panel only looks at whether a government is using available resources to meet its obligations under the covenant.
"For the poorer countries of the world," he says, "this means that the states have to move toward the progressive realization of all the rights, because some are not in a position to immediately realize the rights in their entirety. There are some core obligations all states can meet like providing primary education to children, but for other obligations, like secondary education, some states may not be able to cover that adequately in all areas. So that would be realized progressively."
Supporters also say the protocol does not set policy and leaves it up to states to decide how to comply with the treaty. They add that a lack of resources may not be the cause of a violation. Instead, it may be due to the failure of government policies or legislation to consider the needs of marginalized groups.
The Optional Protocol came into force last year after ratification by 11 countries.
The states that have ratified so far are Argentina, Bolivia, Bosnia & Herzegovina, Ecuador, El Salvador, Mongolia, Montenegro, Portugal, Slovakia, Spain and Uruguay.
However, several African countries are among the 45 that have signed the Optional Protocol with the intent of ratifying: Burkina Faso, Cape Verde, the Democratic Republic of the Congo (Kinshasa), the Republic of the Congo (Brazzaville), Gabon, Ghana, Guinea Bissau, Madagascar, Mali, Senegal, and Togo.
African countries that have not joined the Covenant on Economic, Social and Cultural Rights are Botswana, Comoros, Mozambique, Sao Tao and Principe and South Africa.”
Supporters say the protocol’s complaints mechanism empowers the individual, and is an example of justice “from the bottom [grass roots] up.” So far, no one has presented a petition to the committee.