Ratification of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights Particularly Pressing in Pandemic Context

Donna Lyons, Trinity College Dublin

 

Some of the greatest challenges facing humanity are inescapably global in nature. National measures alone cannot adequately address social and economic inequality (no longer exclusively a domestic matter due to the international flow of capital), the plight of refugees, environmental degradation, or pandemics.

 

This blog post argues as follows: (i) by facilitating discussion, cooperation, compromise, and therefore transnational norm development, global platforms are essential for resolving global challenges, (ii) by way of example, State reporting and review by the various international human rights monitoring mechanisms contribute to norm development at the international level, (iii) individual communications processed through the monitoring mechanisms, due to their frequency, enhance norm development more significantly as compared with periodic reviews and since socio-economic rights are particularly engaged in the Covid-19 context, it is essential that States ratify the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, and finally, (iv) ratification as a course of action is not a priority for the current Irish government and thus the onus will lie on civil society organisations in Ireland to keep the issue on the agenda over the next 12 months.  

Global platforms essential for the resolution of global challenges

For all of its imperfections, the United Nations created a platform in 1945 for the consideration of issues which have implications beyond borders. A large and complex organisation, its principal organs include the UN Security Council (to which Ireland was elected earlier this month for the period 2021-2022), the UN General Assembly (UNGA), the International Court of Justice (which presides over inter-State cases as opposed to individual applications), and the Secretariat (the head of which is the Secretary-General).

 

In order to develop the argument proposed in this blog post, some background regarding the UN’s structural approach to human rights protection is necessary. The UNGA established the Human Rights Council in 2006 (of which Ireland was a member for the period 2013-2015). The Human Rights Council, which operates within the Office of the High Commissioner for Human Rights (OHCHR), conducts the Universal Periodic Review process (a review of each State’s international human rights obligations on a five-yearly basis) and coordinates the work of Special Rapporteurs. The OHCHR was also created by the UNGA and constitutes part of the UN Secretariat. The head of the OHCHR is the High Commissioner for Human Rights (this position was held by Mary Robinson during 1997-2002). The UNGA adopted the International Covenant for Civil and Political Rights (ICCPR) and the International Covenant for Economic, Social and Cultural Rights (ICESCR) in 1966, both of which came into effect in 1976. The ICCPR and ICESCR are crucial to the issues explored in this blog post and are thus discussed in more detail below. It should be noted that regional approaches to norm development, such as the Council of Europe (see, for example, today’s COE decision on equal pay in Ireland), are extremely important but do not feature in this particular piece.

 

Norm development through State reporting and review

The treaty monitoring mechanism for the ICCPR is the Human Rights Committee, and for the ICESCR is the Committee on Economic, Social and Cultural Rights (CESCR). The treaty bodies are also situated within the OHCHR and their mandates include oversight of periodic reporting by States Parties and the receipt of individual communications.

 

Taking socio-economic rights as an example, due to their particular relevance in the Covid-19 context, if one were to consider the frequency of review of a country’s progress in implementing its obligations with respect to such rights, where that State has ratified the ICESCR but not its Optional Protocol, it becomes clear that such review processes are relatively sporadic. To take Ireland as a case study, this country ratified the ICESCR in 1989 and signed the Optional Protocol in 2012 but has not yet ratified. Ireland was reviewed by the CESCR in its periodic reviews of 2015, 2002, and 1999. In addition, Ireland was reviewed under the Universal Periodic Review process in 2016 and 2011 and by the Special Rapporteur on Extreme Poverty in 2011. Given that the ICESCR came into effect in 1976, this constitutes a total of 6 reviews over a 44 year period. Moreover, the less punctual a State is in submitting its periodic report to the CESCR, the less frequently it will be reviewed under that mechanism (reports to the various treaty monitoring bodies are notoriously late: one example of a report submitted over 20 years late is available here).

 

A review of the operation of the treaty body system itself is due to take place in 2020. One of the proposals historically tabled as a means of reforming the treaty body system is the reduction and streamlining of reporting as between the various human rights mechanisms. While in and of itself this may be a very positive development, it would further reduce the frequency of review of progress on implementation in the field of socio-economic rights.

 

The role of individual communications in norm development

On the other hand, review of individual communications by the treaty bodies increase the opportunities for review of a State’s human rights record, albeit on more niche points.

 

Articles 1 and 2 of the ICCPR’s Optional Protocol (entered into force in 1976 and has 116 States Parties) provide the Human Rights Committee with the mandate to hear communications from individuals within States Parties alleging violations of their rights, where they have exhausted all domestic remedies. Individuals within those jurisdictions which are party to the ICESCR’s Optional Protocol (entered into force in 2013 and has 24 States Parties) may apply to the CESCR regarding alleged violations where they have exhausted all domestic remedies.

 

Ireland ratified the ICCPR and its Optional Protocol in 1989 and the Human Rights Committee has heard numerous individual communications from Irish citizen over the years. Indeed, there is every possibility that should ‘Friends of the Irish Environment’ be unsuccessful in their recent Supreme Court bid, that an application to the Human Rights Committee will follow, given that the Committee issued a significant decision on the right to life as it relates to climate degradation in January of this year.

 

The relatively broad ratification of the Optional Protocol to the ICCPR has had the positive effect of influencing norm development as between State actors in the international system over the past four decades. By contrast, since there are only 24 States Party to the ICESCR’s Optional Protocol, inter-State convergence on the application of the ICESCR is much more limited.

 

This blog post is not concerned with the traditional argument that individual communications improve domestic implementation of treaty, but instead emphasises that the frequency of individual applications leads to a speeding up of international norm development. Periodic reviews (both treaty body and UPR) are simply spaced too far apart to be of great effect in this context. The decisions of the treaty bodies on individual communications are non-binding. However, in my view, direct participation by individuals in the international value system intensifies local understanding and debate on matters of domestic and international concern (while not a point of issue here, this process may reduce the oft-discussed democratic deficit in international law governance). Being a party to the ICESCR Optional Protocol leads to more regular engagement with the treaty body on specific aspects of socio-economic rights protection, and therefore enhanced understanding, engagement with, and discussion of national and transnational policies. 

 

If individuals lose their actions at the highest level in the domestic forum and have an option to argue the matter in an international forum, with other individuals from other countries doing the same, international norms and consensus on matters of international concern start to build from the ground up. In addition, this process leads to greater dialogue at the State and inter-State level, and the possibility of reputational protection through State action in response to international pressure. The more countries that ratify the ICESCR Optional Protocol, the more successful this process will be for norm development in the socio-economic rights context.

Ratification of ICESCR Optional Protocol not a priority for Irish government

There has been no shortage of recommendations by the international mechanisms in relation to Ireland’s failure to ratify the ICESCR Optional Protocol. For example, in its 2015 Concluding Observations on the third periodic report of Ireland, the CESCR encouraged the State to ratify the Optional Protocol; in the 2016 Universal Periodic Review of Ireland, Ireland was advised to ratify the Optional Protocol, and Ireland supported this recommendation; and in the 2011 Report of the UN Special Rapporteur on Extreme Poverty, Ireland was again advised to incorporate the Optional Protocol into domestic law.

 

In announcing the government’s intention to sign in March 2012, Eamon Gilmore noted as follows: ‘I am delighted that Ireland is in a position to support the Optional Protocol and to help strengthen UN human rights protection mechanisms.’ Minister Shatter, as he then was, stated that the government was ‘deeply committed to the protection and promotion’ of human rights. If this was true for the government in situ in 2012, it is certainly does not hold true for today’s government.

 

The 2020 Programme for Government emphasises that ‘membership of the UN is a cornerstone of Irish foreign policy’ and that ‘at a time of ever-more complex global threats, which respect no international boundaries, including climate change and pandemics, only coordinated international action and collaboration will bring about solutions’ and yet, nowhere in the Programme is there any mention of the ICESCR Optional Protocol.

 

Moreover, the Department of Foreign Affairs and Trade (DFAT) published a first draft of its ICESCR Fourth Periodic Report in May 2020. Throughout the 67 pages of text regarding Ireland’s implementation of the ICESCR, there is not a single reference to the Optional Protocol. While UN Guidelines on periodic reporting provide that the process ‘should encourage and facilitate, at the national level, public scrutiny of government policies and constructive engagement with relevant actors of civil society in a spirit of cooperation and mutual respect’ the consultation conducted this year in respect of the first draft was rather narrow. Therefore, the onus will be on civil society to engage with 2020 CESCR periodic reporting process, as well as the upcoming 2021 UPR process, to continue to put pressure on the government to not long-finger ratification any further.

 

Indeed, one of Ireland’s leading foreign policy priorities is the protection of civil society space, so nowhere would it be more appropriate than for Ireland to take full advantage of this space.

 

Once ratification of the Optional Protocol becomes more widespread, it will then be crucial as I have pointed out elsewhere, to provide increased funding for the CESCR to adequately deal with an increased caseload.

Donna Lyons is an Assistant Professor at Trinity College Dublin School of Law and a member of the Covid-19 Law and Human Rights Observatory.

Suggested citation: Donna Lyons, 'Ratification of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights Particularly Pressing in Pandemic Context' COVID-19 Law and Human Rights Observatory Blog (29 June 2020) http://tcdlaw.blogspot.com/2020/06/ratification-of-optional-protocol-to.html

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