^* This text was reproduced and reformatted from the text available at International NGO Coalition for an OptionalProtocol to the ICESCR website: (visited March 10, 2009) <http://www.opicescr-coalition.org/OptionalProtocol.pdf.pdf>

¹ U.N. Doc. A/RES/63/117 (Dec. 10, 2008) [hereinafter OP-ICESCR]

² An individual communications procedure had been established with respect to the rights in six of the other seven core U.N. human rights treaties, most of which contain economic, social and cultural rights norms. These include: the ICCPR, the Convention on the Elimination of Racial Discrimination, the Convention Against Torture, the Convention on the Elimination of Discrimination against Women, the Convention on the Rights of Persons with Disabilities, and the Convention on the Rights of Migrant Workers. Only the Convention on the Rights of the Child lacks an individual complaints procedure.

³ See Commission on Human Rights, Report 6, 6 U.N. ES-CROR, Supp. 1, at 4-5, U.N. Doc. E/600 (1947) (making decision and setting up three working groups to deal respectively with each issue).

⁴ For an excellent discussion of the UDHR drafting negotiations, see Mary Ann Glendon, The World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (2001).

⁵ ECOSOC Resolution 303 I(XI) (requesting General Assembly to make policy decision regarding ‘‘[t]he desirability of including articles on economic, social and cultural rights’’ in the International Covenant on Human Rights).

⁶ See 13 U.N. ESCOR, Plenary Meetings, Supp. 1, at 36, U.N. Doc. E/2125 (1951).

⁷ See Annotations on the text of the draft International Covenants on Human Rights, 10 GAOR, Annexes, Agenda, Item 28 (Part II), at 4, ¶ 29, U.N. Doc. A/2929 (1955); id. at 7-8, ¶¶ 7-11 (noting view of certain U.N. Member States that ‘‘legal’’ rights could best be implemented by the creation of a good offices committee, while ‘‘programme’’ rights could best be implemented by the establishment of a system of periodic reports). It is to be noted that a system of periodic reports was established under both the ICCPR and ICESCR.

⁸ G.A. Resolution 421 (V) (Dec. 4, 1950), ¶ 8 (deciding ‘‘to include in the covenant on human rights economic, social and cultural rights’’).

⁹ Id. The option of including an individual petitions mechanism ‘‘in separate protocols’’ appeared to provide for the possibility that States Parties to the covenant might opt-in to the mecha nism with respect to distinct sets of rights as they were ready.

¹⁰ Id.

¹¹ Id. ¶ I7(a),(b).

¹² Non-aligned States split fairly evenly between the two.

¹³ Commission on Human Rights, Report of the Seventh Session, 13 U.N. ESCOR, Supp. 9, at 6, ¶ 22, U.N. Doc. E/1922 (1951). Formally, this was justified on the ground that the Commission, in complying with the Assembly’s 1950 decision, had nonetheless left open the issue of whether the implementation measures, now laid out in Parts IV and V of the draft, applied to the whole Covenant or only to certain parts. Id.

¹⁴ G.A. Resolution 543 (VI) (Feb. 5, 1952).

¹⁵ Id. Both Covenants were adopted simultaneously on December 16, 1966 and both entered into force in 1976, although the ICESCR did so several months earlier than the ICCPR.

¹⁶ The drafting of both Covenants was completed in 1954. See ECOSOC Resolution 545 B (XVIII) (transmitting draft covenants to General Assembly). Another twelve years nonetheless passed before they were adopted by the General Assembly in 1966.

¹⁷ See ICESCR, art. 2; ICCPR, art. 2.

¹⁸ See, e.g., CESCR, General Comment No. 9, The Domestic Application of the Covenant, U.N. Doc. E/C.12/1998/24 (1998) (stating that the ‘‘central obligation’’ of the ICESCR is to ‘‘give effect’’ to rights, through ‘‘all appropriate means,’’ which include legislative measures and the provision of effective legal remedies).

¹⁹ For the leading commentary on the ICESCR, see Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary 43-44 (2d rev. ed. 2005).

²⁰ ECOSOC Resolution 1985/17 (May 28, 1985) (authorizing replacement of sessional working group with committee of 18 independent experts).

²¹ A general periodic reporting system was the only implementation mechanism created under the ICESCR. See ICESCR, Part IV.

²² See, e.g., CESCR (6^th session, 1991), E/1992/23, ¶ 362 (discussing reasons why Optional Protocol is necessary for its work); CESCR, Fact Sheet No. 16 (rev. 1) (1991), Part 8 (same).

²³ U.N. Doc. A/CONF.157/PC/62/Add.5, Annex II.

²⁴ 1993 Vienna Declaration and Programme of Action, U.N. Doc. A/CONF.157/23, ¶¶ 5, 75.

²⁵ U.N. Doc. E/C. 12/1994/12 (1994).

²⁶ See, e.g., F. COOMANS AND G.J.H. VAN HOOF (ED.), THE RIGHT TO COMPLAIN ABOUT ECONOMIC, SOCIAL AND CULTURAL RIGHTS: PROCEEDINGS (OF THE EXPERT MEETING ON THE ADOPTION OF AN OPTIONAL PROTOCOL TO THE INTERNA TIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (Utrecht, 25-28 January 1995) (1995).

²⁷ The text of the draft is appended to E/CN.4/1997/105 (Dec. 18, 1996).

²⁸ Commission on Human Rights Resolution 2001/30.

²⁹ The independent expert’s two reports can be found at E/CN.4/2002/57 and E/CN.4/2003/53.

³⁰ Commission on Human Rights Resolution 2002/24, U.N. Doc. E/CN.4/RES/2002/24 (2002).

³¹ These included: first session (Feb 23-Mar. 5, 2004), second session (Jan. 10-20, 2005), third session (Feb. 6-16, 2006), fourth session (July 16-27, 2007), fifth session (Feb. 4-8, 2008 and Mar. 31 – Apr. 4, 2008). It was not, however, until 2006, following the OEWG’s third session, that the Working Group was given a mandate by the newly-constituted Human Rights Council to begin drafting the optional protocol. See Human Rights Council Resolution 1/3 (June 29, 2006) (deciding to extend the mandate of the Working Group for two years in order to elaborate an optional protocol and requesting the Chairperson to prepare a first draft optional protocol as the basis for further negotiations, including draft provisions corresponding to main approaches outlined in her analytical pa per).

³² See Report of second session, E/CN.4/2005/52. The report of the third session is available at E/CN.4/2006/47 (Mar. 14, 2006).

³³ Elements for an optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Analytical paper by the Chairperson-Rapporteur, Catarina de Albuquerque, E/CN.4/2006/WG.23/2 (Nov. 30, 2005).

³⁴ The “à la carte’’ approach’’ was sub-divided into three alternatives: ‘‘opt-in à la carte,’’ ‘‘out-out à la carte,’’ and ‘‘time limited’’ approaches. See id. at ¶ 5.

³⁵ While some Working Group members advocated extension to all three Parts, others preferred exclusion of Part I only, while still others pressed for limitation to Part III.

³⁶ In 2007, the CESCR issued a very useful report to assist Member States in understanding the duties undertaken in article 2 of the ICESCR. See CESCR, An evaluation of the obligation to take steps to the ‘‘maximum of available resources’’ under an Optional Protocol to the Covenant, E/C.12/2007/1 (Sept. 21, 2007).

³⁷ A/HRC/8/7 (2008), ¶ 255.

³⁸ Human Rights Council Resolution A/HRC/8/2 (June 18, 2008).

³⁹ OP-ICESCR, supra note 1, art. 18.

⁴⁰ Id. arts. 5, 13.

⁴¹ Id. art. 16.

⁴² Id. art. 7.

⁴³ Id. art. 11.

⁴⁴ Id. art. 14.3.

⁴⁵ Id. art. 14.4.

⁴⁶ See U.N. Doc. E/C. 12/2007/1, supra note 36, ¶ 4.

⁴⁷ The use of the term ‘‘author’’ appears to be a drafting error. Article 2 of the Optional Protocol carefully distinguishes the legal identities of the ‘‘author’’ of a communication and those ‘‘claiming to be a victim,’’ which need not be identical. The OP-ICESCR travaux préparatoires on draft article 4 correspondingly indicate the drafters’ intent that the ‘‘alleged victim’’ have suffered ‘‘a clear disadvantage,’’ not the author. The error appears attributable to a direct translation of the term ‘‘applicant’’ from Protocol No. 14 to the European Convention on Human Rights. See infra note 49.

⁴⁸ OP-ICESCR, supra note 1, art. 4.

⁴⁹ See Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Amending the Control System of the Convention, May 13, 2004, C.E.T.S. 194 (permitting European Court of Human Rights to decline to admit a case if the ‘ ‘applicant has not suffered a significant disadvantage, unless respect for human rights . . . requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal’’). Protocol No. 14, which, has yet to come into force pending ratification by Russia, was adopted by the Council of Europe in 2004 in an attempt to deal with the tremendous backlog of cases faced by the European Court of Human Rights, which now receives over 40,000 cases per year.

⁵⁰ See, e.g., Länsman et al. v. New Zealand, U.N. Hum. Rts. Comm., Comm. No. 511/1992, ¶ 9.5.

⁵¹ OP-ICESCR, supra note 1, art. 8(4) (emphasis added).

⁵² The European Court of Human Rights follows a case-by-case approach to margin of appreciation analysis. See generally Howard Charles Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (1996). Although most other supranational human rights bodies decline to apply the appreciation doctrine as a direct basis of review, see, e.g., Länsman, supra note 50, ¶ 9.4, all recognize through case-by-case proportionality analysis that States have varying levels of discretion in choosing appropriate means to implement rights. The operative question is whether the means chosen are proportional to the legitimate and pressing ends sought to be achieved.

⁵³ See generally Michael J. Dennis & David P. Stewart, Justiciability of Economic, Social and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, Health?, 98 AM. J. INT’L L. 462 (2004) (making claims from abstract). For a detailed discussion of comparative approaches to the concrete adjudication of economic, social and cultural rights claims by national and supranational tribunals, see M. LANGFORD, ED., SOCIAL RIGHTS JURISPRUDENCE: EMERGING TRENDS IN INTERNATIONAL AND COMPARATIVE LAW (2008).

⁵⁴ OP-ICESCR, supra note 1, art. 2 (communications may be submitted ‘‘by or on behalf of individuals or groups of individuals 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’’) (emphasis added).

⁵⁵ See ICESCR, arts. 4-5. The Committee has interpreted ICESCR articles 4 and 5 as requiring proportionality review. See, e.g., CESCR, General Comment No. 14, The right to the highest attainable standard of health, U.N. Doc. E/C.12/2000/4 (2000), ¶¶ 28-29.

⁵⁶ See, e.g., SOCIAL RIGHTS JURISPRUDENCE, supra note 53, chs. 24-26 (examining comparative treaty body approaches to social rights).

⁵⁷ See, e.g., id. chs. 4-22 (examining comparative approaches to social rights adjudication in national and regional jurisdictions).

⁵⁸ Like human rights bodies with primary jurisdiction over civil and political rights norms, the merits-based focus of the CESCR under the OP-ICESCR is highly likely to center on three sets of legal review standards, each designed to deter mine whether discrete interferences with or limitations on protected rights are justified in the circumstances: (1) classic means-ends proportionality analysis, (2) recognition of the procedural dimensions of rights, including safeguard policies around the core human rights principles of non-discrimination, participation, and accountability; and (3) the development of substantive equality standards requiring special attention to the most vulnerable. The CESCR has repeatedly referred to these safeguards in its General Comments, see, e.g., General Comment No. 14, supra note 55, and they closely track the standards already applied extensively by human rights tribunals around the world as they deal with claims affecting the full family of human rights.

⁵⁹ Statement by Ms. Louise Arbour, High Commissioner for Human Rights to the Open-ended Working Group on an optional protocol to the International Covenant on Economic, Social and Cultural Rights, Fifth session, Salle XII, Palais de Nations, Mar. 31, 2008.