When the Universal Declaration of Human Rights marked its 60th anniversary in 2008, a watershed development went largely unnoticed. With the adoption of the new Optional Protocol to the Covenant on Economic, Social and Cultural Rights, the UN General Assembly voted to end an historic imbalance that has given civil and political rights greater weight. The new Protocol provides a long awaited mechanism for overseeing and protecting economic, social and cultural rights in the international arena.
Human rights advocates have long argued that economic, social and cultural rights should enjoy the same legal status as civil and political rights. In December 2008, the UN General Assembly adopted the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. For those who have long endured in silence the denial of access to food, housing and other basic necessities, the new Protocol at last offers a process for filing complaints and to have them heard and investigated by the UN Committee on Economic, Social and Cultural Rights.
“It represents the reassurance that their causes might and will be heard by the United Nations,” says High Commissioner for Human Rights Navi Pillay. “It is, for many, a dream come true.”
The Optional Protocol effectively gives legal teeth to the International Covenant on Economic, Social and Cultural Rights, which was adopted by the General Assembly in 1966. The Covenant recognised the right to an adequate standard of living, the right to food, the right to housing, the right to healthcare, and the right to education, among others.
Today more than a billion people live in circumstances of extreme poverty. More than one and a half billion people lack access to clean drinking water and sanitation, some 500 million children do not have access to primary education and more than a billion adults cannot read or write. The Office of the High Commissioner for Human Rights (OHCHR) in its 2005 Plan of Action identified poverty as “the gravest human rights challenge in the world.”
In persuading the international community to adopt the Optional Protocol, its supporters successfully demonstrated that economic, social and cultural rights were legally enforceable. Court decisions in both developed and developing nations over the past 20 years have bolstered the campaign for adoption of the Protocol. Since the 1980s, the Supreme Court of India has acted on an array of such rights including the right to livelihood. For example, in a case concerning pavement dwellers, it ruled that, “to lose the pavement of the slum is to lose the job.” The Colombian Constitutional Court has asserted in numerous cases that failure to provide access to health care services may entail a violation of the right to life. The Canadian Supreme Court ruled in 1997 that failure to provide sign language interpreters for deaf people in medical centres amounted to discrimination.
But until now, people suffering from chronic malnutrition, inadequate healthcare, lack of education opportunities, poor housing, or a combination of all of these, had no right of petition at the international level. The Optional Protocol provides for such complaints to be heard by the UN Committee on Economic, Social and Cultural Rights after attempts at pursuing national remedies have been exhausted. The Committee may assess the action taken, or not taken, based on the State’s available resources and can decide if a violation has occurred. It is then up to the State to enforce and implement any recommendations made by the Committee.
“The Optional Protocol represents a veritable milestone in the history of universal human rights,” says Ms. Pillay. “It will enable victims to seek justice for violations of their economic, social and cultural rights at the international level for the first time.”
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