News / Africa

UN Mechanism Helps Defend Economic, Social and Cultural Rights

Hakijamii and other Kenyan partners in favor of the Optional Protocol meet in Nairobi in September, 2012. (Photo: NGO Coalition for the OP-ICESCR)
Hakijamii and other Kenyan partners in favor of the Optional Protocol meet in Nairobi in September, 2012. (Photo: NGO Coalition for the OP-ICESCR)
William Eagle

 
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.

Last recourse
 
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]."

Widespread effects

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. 

Listen to report on Optional Protocol to Covenant on Economic, Social and Cultural Rights
Listen to report on Optional Protocol to Covenant on Economic, Social and Cultural Rights.i
|| 0:00:00
...    
🔇
X

You May Like

Captured IS Militants Explain Why They Fought

Fighters from Turkey, Syria tell VOA Kurdish Service what drew them to extremism, jihad More

Security Experts Split on Kenyan Barrier Wall

Experts divided on whether initiative aiming to keep out al-Shabab militants is long-awaited solution or misguided effort More

Video Philippines Wants Tourists Spending Money at New Casinos

Officials say they hope to turn Manila into the next Macau, which has long been Asia’s gambling hub More

This forum has been closed.
Comments
     
There are no comments in this forum. Be first and add one

Featured Videos

Your JavaScript is turned off or you have an old version of Adobe's Flash Player. Get the latest Flash player.
Liberia's Almost Last Ebola Patient Grateful but Still Grievingi
X
Benno Muchler
March 26, 2015 3:41 PM
Beatrice Yardolo was to make history as Liberia’s last Ebola patient. Liberians recently started counting down 42 days, the period that has to go by without a single new infection until the World Health Organization can declare a country Ebola-free. That countdown stopped on March 20 when there was another new case of Ebola, making Yardolo’s story a reminder that Ebola is far from over. Benno Muchler reports from Monrovia.
Video

Video Liberia's Almost Last Ebola Patient Grateful but Still Grieving

Beatrice Yardolo was to make history as Liberia’s last Ebola patient. Liberians recently started counting down 42 days, the period that has to go by without a single new infection until the World Health Organization can declare a country Ebola-free. That countdown stopped on March 20 when there was another new case of Ebola, making Yardolo’s story a reminder that Ebola is far from over. Benno Muchler reports from Monrovia.
Video

Video Cambodian Land Grabs Threaten Traditional Communities

Indigenous communities in Cambodia's Ratanakiri province say the government’s economic land concession policy is taking away their land and traditional way of life, making many fear that their identity will soon be lost. Local authorities, though, have denied this is the case. VOA's Say Mony went to investigate and filed this report, narrated by Colin Lovett.
Video

Video US, South Korea Conduct Joint Military Exercises

The Eighth U.S. Army Division and the Eighth Republic of Korea Mechanized Infantry Division put on a well orchestrated show of force for the media this week during their joint military training exercises in South Korea. VOA’s Seoul correspondent Brian Padden was there and reports the soldiers were well disciplined both in conducting a complex live fire exercise and in staying on message with the press.
Video

Video Space Program Status Disappoints 'Last Man on the Moon'

One of the films that drew big crowds last week at the annual South by Southwest festival in Austin, Texas, tells the story of the last human being to stand on the moon, U.S. astronaut Eugene Cernan. It has been 42 years since Cernan returned from the moon and he laments that no one else has gone there since. VOA’s Greg Flakus reports.
Video

Video Young Filmmakers Shine Spotlight on Giving Back

A group of student filmmakers from across the United States joined President Barack Obama at the White House this month for the second annual White House Student Film Festival. Fifteen short films were officially selected from more than 1,500 entries by students aged 6 through 18. The filmmakers and their families then joined the president and a group of celebrities for a screening of their films. VOA’s Julie Taboh reports.
Video

Video VOA Exclusive: Interview with Afghan President Ashraf Ghani

Afghan President Ashraf Ghani, during his first visit as president to Washington, gave a one-on-one interview with VOA Afghan Service reporter Said Suleiman Ashna, about his request for a change in U.S. troop levels, the threat from the Islamic State, and repairing relations with the United States and Pakistan. The interview was held at Blair House, late Sunday, in Pashto.
Video

Video California Science Center Tells Story of Dead Sea Scrolls

The ancient manuscripts were uncovered in the mid-20th century, and they are still yielding clues about life and religious beliefs in ancient Israel. As VOA's Mike O'Sullivan reports, an exhibit in Los Angeles shows how modern science is bringing the history of these ancient documents to life.
Video

Video Angelina Jolie Takes Another Bold Step

Hollywood actress and filmmaker Angelina Jolie has revealed she had her ovaries and fallopian tubes removed to lower her odds of getting cancer. Doctors say the huge publicity over her decision will help raise awareness about the importance of cancer screening. VOA’s George Putic has more

All About America

Circumventing Censorship

An Internet Primer for Healthy Web Habits

As surveillance and censoring technologies advance, so, too, do new tools for your computer or mobile device that help protect your privacy and break through Internet censorship.
More