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

Video On the Scene: In Gaza, Darkness Brings Dread and Death

Palestinians fear nighttime raids, many feel abandoned by outside world, VOA's Scott Bobb reports More

African Small Farmers Could Be Key to Ending Food Insecurity

Experts say providing access to microloans, crop insurance, better storage facilities, irrigation, road systems and market information could enable greater production More

University of Michigan Wins Solar Car Race

Squad guided its student-designed solar-powered vehicle to fifth consecutive time victory in eight-day bi-annual American Solar Challenge 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.
Gazans in Shelled School Sought Shelteri
X
Scott Bobb
July 30, 2014 8:16 PM
Israel's air and ground assault against Hamas-led fighters in Gaza has forced many Palestinians to flee their homes, seeking safety. But safe places are hard to find, as VOA’s Scott Bobb reports from Jabaliya.
Video

Video Gazans in Shelled School Sought Shelter

Israel's air and ground assault against Hamas-led fighters in Gaza has forced many Palestinians to flee their homes, seeking safety. But safe places are hard to find, as VOA’s Scott Bobb reports from Jabaliya.
Video

Video Rapid Spread of Ebola in West Africa Prompts Global Alert

Across West Africa, health officials are struggling to keep up with what the World Health Organization describes as the worst ebola outbreak on record. The virus has killed hundreds of people this year. U.S. President Barack Obama and other world leaders are watching the developments closely as they weigh what actions, if any, are needed to help contain the disease.
Video

Video Michelle Obama: Young Africans Need to Embrace Women's Rights

U.S. first lady Michelle Obama urged some of Africa's best and brightest to advocate for women's rights in their home countries. As VOA's Pam Dockins explains, Obama spoke to some 500 participants of the Young African Leaders Initiative, a six-week U.S.-based training and development program.
Video

Video Immigrant Influx on Texas Border Heats Up Political Debate

Immigrants from Central America continue to cross the U.S.-Mexico border in south Texas, seeking asylum in the United States, as officials grapple with ways to deal with the problem and provide shelter for thousands of minors among the illegal border crossers. As VOA's Greg Flakus reports from Houston, the issue is complicated by internal U.S. politics and U.S. relations with the troubled nations that immigrants are fleeing.
Video

Video Study: Latino Students Most Segregated in California

Even though legal school segregation ended in the United States 60 years ago, one study finds segregation still occurs in the U.S. based on income and race. The University of California Los Angeles Civil Rights Project finds that students in California are more segregated by race than ever before, especially Latinos. Elizabeth Lee reports for VOA from Los Angeles.
Video

Video Vietnamese Staging Chinese Product Boycott After Oil Rig Spat

China recently pulled an oil rig from an area of the disputed South China Sea that Vietnam also claims. Despite the action, the incident has had a lingering effect on consumers in Vietnam. VOA's Reasey Poch reports from Hanoi on an effort to boycott Chinese products.
Video

Video A Summer Camp for All the World

VIDEO: During workshops and social gatherings, the Global Youth Village summer camp encourages young people to cooperate and embrace their differences, while learning to communicate with people from other countries. VOA's Deborah Block has more.
Video

Video From Cantankerous Warlock to Incorruptible Priest, 'Harry Potter' Actor Embraces Diverse Roles

He’s perhaps best known as Mad Eye Moody, the whimsical wizard in the Harry Potter franchise. But character actor Brendan Gleeson's resume includes dozens of films, and he embraces all the characters he inhabits with equal passion. In an interview with VOA’s Penelope Poulou, Gleeson discussed his new drama "Calvary" and his secret to success.

AppleAndroid