Mali has to be among the first signatories of the Optional Protocol to the ICESCR

Wednesday 23 September 2009 by Madani Koumaré (Réseau Aoudaghost - Plateforme DESC Mali)

Mali signed and ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1966 and 1974 respectively. Since it came into force in 1976, Mali has not presented its intitial report. There is a lack of harmonisation, which compromises the achievement and protection of economic, social and cultural rights even more as long as the protocol has not been ratified.

The Malian ESC Rights Platform, created in December 2005, is a reference in the field in Mali. It counts among its achievements: the launching and running of several initiatives for the promotion of economic, social and cultural rights, the drafting of the first alternative report on the implementation of the International Covenant on Economic, Social and Cultural Rights in Mali, and the organization of several round tables on economic, social and cultural rights in Mali, among others.

The main working instrument of the Malian ESC Rights Platform is the International Covenant on Economic, Social and Cultural Rights (ICESCR).

In international law, economic, social and cultural (ESC) rights belong to human rights in the same way and an the same level as civil and political (CP) rights which have already had an Optional Protocol in vigor since March 23, 1976.

On 10 December 2008, on the occasion of the 60th anniversary of the Universal Declaration of Human Rights (UDHR), the United Nations adopted at last the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR).

It constitutes an essential tool for ESC rights justiciability and enforceability, that is to say for the advocacy activities carried out by the Malian ESC Rights Platform.

However, the Protocol will not be a valid and binding working instrument before its ratification by States. Ten ratifications are needed for the Protocol to come into force.

It will open for signature on 24 September 2009 at a ceremony to be held in New York.

It took many efforts to achieve this result. A group of international experts was formed to identify the main obstacles to the drafting of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights that would make the rights therein enounced justiciable.

Covered and claimable rights

The Protocol states that all the rights enounced in the ICESCR can be the subject of a communication to the Committee on ESC rights (article 2 of the Protocol). In the event of the violation of whichever of these rights, the victims thus have the possibility to bring the matter before the Committee on ESC rights.

The possibility to claim all the rights enshrined in the ICESCR complies with the other human rights instruments: all the rights covered in the different treaties can be the subject of a communication, without exception, at the international level.

The implementation of each human rights treaty is monitored by a treaty-based body composed of independent experts.

These treaty-based bodies receive the States Parties’ periodic reports on the measures adopted to comply with their obligations.

The communications procedure

In virtue of the Optional Protocol to the ICESCR, communications may be submitted “by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant by that State Party.” (article 2).

There are thus several conditions to respect in order to be able to submit a communication. The most important are that the victim must belong to the jurisdiction of the State responsible for the violation and that that State must be a Party to the ICESCR and to the Protocol to the ICESCR.

One of the particularities of the Protocol to the ICESCR is that it allows communications to be submitted by or on behalf of individuals or groups of individuals. The possibility for a group to submit a communication has been accepted for a long time by the Human Rights Committee, but the possibility for individuals or groups of individuals to do so is a significant progress.

The Optional Protocol specifies that: “Where a communication is submitted on behalf of individuals or groups of individuals, this shall be with their consent unless the author can justify acting on their behalf without such consent.” (art.2)

Conditions of admissibility for a communication to the Committee on ESC rights

Upon receipt of a communication, the Committee, just like the other treaty-based bodies, will bring it to the attention of the State Party accused of having violated one of the rights enshrined in the ICESCR. A procedure will follow during which the Committee will start with determining if the communication is admissible.

There are three main conditions for the admissibility of a communication to the Committee on ESC rights:

  • First, the matter which constitutes the subject of the communication cannot be at the same time the subject of an examination under another procedure of international investigation or settlement.

So the victims of ESC rights violations will not be able to bring a matter before the Committee on ESC rights if the matter is already being examined under another procedure by another monitoring body (like the ILO, the African Court/Commission on Human and Peoples’ Rights, or the Inter-American Court/Commission on Human Rights).

  • Secondly, the author of the communication will have to have exhausted all available domestic remedies This shall not be the rule where the application of such remedies is unreasonably prolonged. The communication must be submitted within one year after the exhaustion of domestic remedies (art. 3, par. 2).
  • Thirdly, the Committee will not receive anonymous communications. Every communication must come from a known and clearly referenced source.

The Malian ESC Rights Platform, that initiated the first alternative report on economic, social and cultural rights in Mali and West Africa, invites the Malian government to seize this opportunity and be one of the first States to sign and ratify the Optional Protocol.

This is the goal of the advocacy campaign which started on 12 September 2009.


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