Economic, Social and Cultural (ESC) rights were established at international level by the 1948 Universal Declaration of Human rights and the 1966 International Covenant on Economic, Social and Cultural rights (ICESCR) which came into force in 1976.
So far, the ICESCR has been ratified by 160 States.
The States Parties to the ICESCR are under the obligation to develop ESC rights enforcement strategies, which means setting up administrative structures, allocating relevant budgets, adopting ESC rights enforcement programs and plans with a clear schedule, and encouraging the participation of civil society.
The Universal Declaration of Human Rights is not binding. The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were thus both established in 1966 to make it compulsory for signatory States to respectively enforce CP and ESC rights.
In order to monitor the enforcement of civil and political rights, the Optional protocol to the ICCPR (also adopted in 1966) created the Human Rights Committee which reviews States’ official reports and receives individual or collective complaints.
No such Committee was set up for ESC rights in 1966.
The United Nations Economic and Social Council (ECOSOC) denounced this situation in its Resolution 1985/17 from May 28, 1985. The ECOSOC set up the UN Committee on ESC rights in order to monitor States’ compliance with their obligations. However, the Committee was only able to review reports, without being entitled to receive any complaints whether of an individual, collective or interstate nature.
In 1993, civil society organisations (CSOs) initiated a debate at the United Nations (UN) concerning the adoption of an Optional Protocol to the ICESCR that would place ESC rights on equal footing with CP rights.
In 2003, a working group was created, composed of Committee members, international experts and international civil society’s representatives who were tasked to draft a protocol.
The text of the Optional protocol to the ICESCR was finalised in April 2008 and approved by the new Human Rights Council (which has replaced the United Nations’ Human Rights Commission) in June 2008. It was adopted by the UN General Assembly on 10 December 2008. It was opened for signature at a ceremony that was hold on 24 September 2009 during the 2009 Treaty Event at the United Nations Headquarters in New York. The Protocol must be ratified by at least 10 States before it comes into force.
With this Optional Protocol, if all the national and regional remedies have been exhausted, individuals or groups will be able to transmit communications to the UN Committee on ESC rights denouncing ESC rights violations. The Committee will then carry out an investigation and demand explanations from the accused state. The text also sets forth the possible allocation of a fund to help States Parties better enforce ESC rights.
Until the Optional Protocol becomes effective, it is possible to use regional instruments such as the African Charter on Human and Peoples’ Rights (ACHPR) which is much more advanced in terms of ESC rights than other international instruments: it sets forth the indivisibility of CP and ESC rights, and focuses on cultural and collective rights. Even if the Committee’s recommendations are not binding, they can have an effect on investments and the international cooperation. Moreover, regional jurisprudence is commonly used in domestic law: if all available domestic remedies have been exhausted, it is still possible to take the case before the African Court on Human and Peoples’ Rights.
