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The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. Main issues debated during WG. Are ESCR justiciable? -A majority of States were convinced that the experience of national and regional courts and mechanisms shows that ESCR can be considered justiciable

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The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

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  1. The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

  2. Main issues debated during WG • Are ESCR justiciable? -A majority of States were convinced that the experience of national and regional courts and mechanisms shows that ESCR can be considered justiciable -Some States are still skeptical

  3. Does the nature of ESCR require specific procedural provisions? • There was no consensus to create a collective complaints system. The OP follows the path of similar instruments (OP-CEDAW, OP-CRPD) • The OP contains some innovations which reflect the demand to clarify the standard of review and to allow only significant cases to be considered

  4. Should international assistance and cooperation be reflected in the OP? • Some innovations in relation to similar instruments (OP-ICCPR, OP-CEDAW, OP-CRPD) were included to reflect obligations of int’l cooperation and assistance contained in the ICESCR

  5. Procedures • The OP provides for three kinds of procedures: 1) A communications procedure 2) An inter-state communications procedure 3) An inquiry procedurre

  6. The procedure is in general similar to other communications procedures: OP-ICCPR, OP-CEDAW, OP-CRPD Standing: communications can be submitted by: -individuals or groups of individuals under jurisdiction of a State party, or -someone on their behalf with their consent (unless justified) alleging violations of ESCR Communications

  7. Admissibility: -exhaustion of domestic remedies -same case is not and has not been considered by similar procedure -within 1 year of exhaustion -CESCR can declare case inadmissible if if doesn’t reveal that victim has suffered a clear disadvantage, unless public interest is involved Communications (cont’d)

  8. Communications (cont’d) • New features: -Friendly settlement -CESCR can consult relevant documentation from other UN and regional bodies -Standard of review: “reasonableness of steps taken by State”

  9. Inter-state communications • Similar to procedure established by other OPs and instruments • Requires opt-in by State parties involved to be applicable • State Party claims that another State Party is not fulfilling its obligations under the Covenant

  10. Inquiry procedure • Similar to procedure established by other OPs and instruments • Requires opt-in by State party concerned to be applicable • Applicable when CESCR receives reliable information indicating grave or systematic violations by a State Party of any of the ESCR set forth in the Covenant

  11. International assistance & cooperation • CESCR may transmit to UN agencies and competent bodies, views or recommendations indicating need for technical advice or assistance or which may assist them in deciding international measures to achieve progress in implementation of ESCR • Trust fund to be established to provide expert and technical assistance to States Parties for the enhanced implementation of the ESCR

  12. Entry into force • The 10th ratificationrequired forentryintoforce has beendepositedon 5 February 2013. The OP willenterintoforceon 5 May 2013 • Ratifyingcountries are: Argentina, Bolivia, Bosnia and Herzegovina, Ecuador, El Salvador, Mongolia, Portugal, Slovakia, Spain and Uruguay.

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