A/HRC/28/65
Organization (FAO) by consensus. States cannot therefore claim to be unaware of or refuse
to comply with the guidelines. Over the years, in many formal settings, the Governments
have reiterated their commitment to and support for the guidelines.
B.
A new era: adoption of the Optional Protocol and access to justice
6.
The interdependence and indivisibility of economic, social and cultural rights and
civil and political rights have long been asserted within international law, yet in practice
economic, social and cultural rights have typically been relegated to second place within
the international framework, with civil and political rights taking centre stage, particularly
when it comes to implementation. While the International Covenant on Civil and Political
Rights includes an explicit provision requiring States “to develop the possibilities of
judicial remedy” (art. 2, para. 3 (b)), no such specific provision is explicitly mentioned in
the International Covenant on Economic, Social and Cultural Rights. It should be noted,
however, that the Committee has clarified that the obligation under article 2, paragraph 1,
of the Covenant to “take steps … by all appropriate means” includes the provision of
judicial remedies.4
7.
The reluctance of a number of States to recognize that economic, social and cultural
rights are justiciable has done much to propagate unfounded misconceptions thereon. Those
countries opposed to the justiciability of those rights argue that such a notion may interfere
with State sovereignty5 claiming that it is inappropriate for courts to adjudicate on social
and economic policy. There is also a perception that social and economic rights set forth
political objectives and are too vague to be enforceable.6 The suggestion that these rights
are resource-dependent and cannot be satisfied where there is a lack of capital, and the idea
that these rights only impose positive obligations on States and civil and political rights
give rise to negative ones, has also led to resistance from some States.
8.
The justiciability debate continues to provoke controversy at the international level.
However despite strong opposition from a number of States an Optional Protocol to the
Covenant, establishing an individual complaints procedure, was finally adopted in 2008. Its
subsequent entry into force in May 2013 was hailed as “potentially one of the most
important developments in human rights protection at the UN level in a generation”.7
9.
The Optional Protocol is intended to complement rather than replace national legal
systems and should not be considered as the principal means of seeking justice. The
Optional Protocol grants individuals, or groups of individuals under the jurisdiction of a
State party, the right to submit communications about alleged violations of any economic,
social or cultural right to the Committee on Economic, Social and Cultural Rights (art. 2).8
10.
Article 2 of the Optional Protocol requires that authors of communications must be
under the jurisdiction of the State party responsible for the violation, and that the State must
have ratified both the Covenant and the Optional Protocol. However, the Covenant
indicates no restriction to territorial jurisdiction and it will remain to be seen whether the
4
5
6
7
8
4
General comment No. 3 on the nature of States parties’ obligations, para. 5.
George Kent, Freedom from Want: The Human Right to Adequate Food (Georgetown University
Press, Washington, D.C., 2008).
International NGO Coalition for an Optional Protocol to the International Covenant on Economic,
Social and Cultural Rights, “Celebration of the Entry into Force of the OP-ICESCR”, 2013.
Ibid.
The development of a communication process encompassing all economic, social and cultural rights
represents an innovative approach to ensuring remedy for victims of violations.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents