2010 Alburqueque

Chronicle of an Announced Birth: The Coming into Life of the Optional Protocol to the
International Covenant on Economic, Social and Cultural Rights—The Missing Piece of

the International Bill of Human Rights
Author(s): Catarina de Albuquerque
Source: Human Rights Quarterly , Feb., 2010, Vol. 32, No. 1 (Feb., 2010), pp. 144-178
Published by: The Johns Hopkins University Press
Stable URL: https://www.jstor.org/stable/40390005
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HUMAN RIGHTS QUARTERLY
Chronicle of an Announced Birth:

The Coming into Life of the Optional
Protocol to the International Covenant
on Economic, Social and Cultural
Rights - The Missing Piece of the
International Bill of Human Rights
Catarina de Albuquerque*
ABSTRACT
At the 2009 Treaty Event held at UN Headquarters in New York, twenty-

nine states signed the Optional Protocol to the International Covenant on
Economic, Social and Cultural Rights. This new treaty had been adopted
by consensus of the United Nations General Assembly on 10 December
2008, after decades of discussions and a surprisingly short nine months of
intergovernmental negotiations over a draft. This article aims to share some
of the history of discussions on economic, social, and cultural rights and
on an optional protocol to the Social Rights Covenant within the United
Nations. It also intends to show how this debate has evolved up until now,
especially during the discussions within the UN open-ended working group
on an optional protocol.
Catarina de Albuquerque Chairperson-Rapporteur of the UN Open-Ended Working Group

on an Optional Protocol to the International Covenant on Economic, Social and Cultural
Rights, and an invited professor at the Universities of Coimbra, Braga, ISCTE (Higher Institute
of Business and Labour Sciences) and Autonomous University of Lisbon (Portugal). Since
November 2008, she has been UN Independent Expert on the issue of human rights obliga-
tions related to access to safe drinking water and sanitation.
The author wishes to thank Bruce Porter and Simon Walker for comments and sugges-
tions made on an earlier version of this text. She also wishes to take this opportunity to
thank Simon Walker and Ulrik Halsteen - the two Secretaries of the Working Group - for
their constant, professional and committed support, which went far beyond their obligations
as staff members of the OHCHR and without which the negotiations would not have gone
as "smoothly" and pleasantly as they did.
Human Rights Quarterly 32 (2010) 144-1 78 © 2010 by The Johns Hopkins University Press

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201 0 Optional Protocol to the ICESCR 1 45
I. INTRODUCTION
The Vienna Declaration and Program of Action (VDPA) adopted at

World Conference for Human Rights expressly mentions that "[a]
rights are universal, indivisible and interdependent and interrelated" a
be treated "in a fair and equal manner, on the same footing, and
same emphasis/'1 Despite this, at the national, regional, and universal
economic, social, and cultural rights have been treated as poor rel
human rights and perceived with caution, skepticism, or triviality.
Currently existing at the international level are different possibili
filing communications in cases of torture, arbitrary detention, racial
nation, discrimination against women, and violations of freedom o
or religion.2 However, in those cases where the victim "simply" suffer
chronic malnutrition, seriously inadequate health care, total lack of ed
opportunities, or a combination of all these phenomena, that vict
not have the right to petition at the international level. As stated by
chairperson of the Committee on Economic, Social and Cultural Rights
the Vienna Conference in 1993, the sad reality is that we continue to
tolerate all too often breaches of economic, social and cultural rights
if they occurred in relation to civil and political rights, would provoke
1 . Vienna Declaration and Programme of Action, adoptedlS June 1 993, U.N. GA

Sess., 22d plen. mtg., 1 5, U.N. Doc. A/CONF.1 57/23 (1993), reprinted in
1661 (1993).
2. See generally Optional Protocol to the International Covenant on Civil and Politica
Rights, adopted 16 Dec. 1966, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., U.N.
Doc. A/6316 (1966), 999 U.N.T.S. 171 {entered into force 23 Mar. 1976) [hereinafter
OPICCPR]; International Convention on the Elimination of All Forms of Racial Discrimina-
tion, adopted!} Dec. 1965, G.A. Res. 2106 (XX), U.N. GAOR, 20th Sess., art. 14, 660
U.N.T.S. 195 (entered into force 4 Jan. 1969), reprinted in 5 I.L.M. 352 (1966); Optional
Protocol to the Convention on the Elimination of All Forms of Discrimination Against
Women, adopted 6 Oct. 1999, G.A. Res. 20378, U.N. GAOR, 54th Sess., U.N. Doc. A/
RES/54/4 (1999), 2131 U.N.T.S. 83 (entered into force 22 Dec. 2000); Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10
Dec. 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., art. 22, U.N. Doc. A/39/51
(1985), 1465 U.N.T.S. 85 (entered into force 26 June 1987); International Convention
on the Protection of the Rights of All Migrant Workers and Members of Their Families,
adopted 18 Dec. 1990, G.A. Res. 39481, U.N. GAOR, 45th Sess., art. 77, U.N. Doc. A/
Res/45/1 58 (1 990) (entered into force 1 Jul. 2003); Optional Protocol to the Convention
on the Rights of Persons with Disabilities, adopted 13 Dec. 2006, G.A. Res. 44910,
U.N. GAOR, 61st Sess., art. 1, U.N. Doc A/61/611 (2006) (entered into force 3 May
2008). In fact, from all the core human rights treaties, only the Convention on the Rights
of the Child does not foresee a communications procedure. However, this situation is
hopefully about to change soon because the Human Rights Council established, during
its June 2009 session, an open-ended Working Group on an optional protocol to the
Convention on the Rights of the Child to provide a communications procedure which
will start its work in December 2009. Open-ended Working Group on an Optiona
Protocol to the Convention on the Rights of the Child To Provide a Communications
Procedure, H.R.C Res. 11/1, U.N. GAOR, Hum Rts. Council, 11th Sess., at 113, U.N.
Doc. A/64/53 (2009).

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146 HUMAN RIGHTS QUARTERLY Vol. 32
sions of horror and outrage and would lead to concer

remedial action. In effect, despite the rhetoric, violati
rights continue to be treated as though they were far
patently intolerable, than massive and direct denials
cultural rights.3
This statement is almost twenty years old, but un

remains pertinent today.
In fact, the disparities among individuals' enjoymen
and cultural rights are enormous. The High Commis
referred to these disparities in her Plan of Action:
The gap between rich and poor countries, and the glo
to, seriously challenge our commitment to the universa
human rights terms, poverty is both a symptom and a
deprivation is a sign that those affected are living in a stat
denial of rights, and the poor and marginalized are de
capacity to claim their rights. A marked characteristic o
ties living in extreme poverty is that they do not hav
to the institutions and services of Government that give
This inequality of access, in particular to justice, is ofte
tion on other grounds.4
Later in her Plan of Action, the High Commissione
[economic, social and cultural] rights still enjoy a lesse

countries. Some believe that the principle of progressive re
creates special difficulties regarding accountability. . .
be done, however, including in convincing often skept
ments that human rights truly are interdependent and
The realization of socioeconomic rights is still only

or even billions - of persons.6 In order to better imple
and cultural rights in the world, they must first be ack
treated on the same footing and with equal emphas
3 . Status of Preparation of Publications, Studies and Document

Contribution Submitted by the Committee on Economic, Social
Conf. on Hum. Rts., Prep. Comm., 4th Sess., Annex I, 1 5
PC/62/Add.5 (1993) [hereinafter Status of Preparation].
4. See In Larger Freedom: Towards Development, Security,
Report of the Secretary-General, Kofi Annan, U.N. GAOR, 59
& 55, at 8, U.N. Doc. A/59/2005/Add.3 (2005).
5. See id. at 1 9-20.
6. There are presently approximately 2.5 billion people without access to basic sanitat
over one billion people practice daily open defecation, almost one billion people do n
have access to safe drinking water, 1 .4 billion people live on less than $1 .25 a day, an
72 million children don't have access to education. For these and other figures on t
world's performance regarding the Millennium Development Goals, see United Nations
The Millennium Development Goals Report 4-5, 45 (2009), available at http://www.un.or
millenniumgoals/pdf/MDG_Report_2009_ENG.pdf.

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rights. However, the international community still has differ

dress these inequalities of recognition, treatment, and enforc
section will summarize some of the crucial steps taken by the
to accomplish the goal of adopting a complaints mechanism at
level for cases of violations of economic, social, and cultural r
II. False Twins
In 1966, the adoption of the International Covenant on Ci

Rights (ICCPR) and the International Covenant on Econo
Cultural Rights (ICESCR or Social Rights Covenant) forma
international protection of human rights into two distinct cat
the two Covenants were adopted on the same day throug
Assembly resolution, and even though some of their provi
there exist fundamental differences between the two instrum
First, the Social Rights Covenant did not create an indepen
the follow-up and monitoring of the treaty's enforcement at t
whereas the ICCPR foresaw the creation of the Human Rights
body composed of eighteen independent experts in charge of
way states parties fulfill their obligations under the ICCPR. T
fulfills its functions through the examination of periodic rep
by states parties on the measures the states have adopted
the rights recognized in the ICCPR and on the progress
enjoyment of these rights.8
Instead, drafters of the Social Rights Covenant chose t
Economic and Social Council (ECOSOC), a subsidiary body
Assembly with a political nature and where UN member
sented, the responsibility to receive and examine periodic rep
by states parties.9 However, due to the inefficacity of th
follow-up procedures by ECOSOC, the Committee on
and Cultural Rights (CESCR or Social Rights Committee)
today, was created in 1985 through an ECOSOC resolutio
7 International Covenant on Civil and Political Rights, adopted 16 D

2200 (XXI), U.N. GAOR, 21st Sess., U.N. Doc. A/6316 (1966), 999 U
into force 23 Mar. 1976) [hereinafter ICCPR]; International Coven
Social and Cultural Rights, adopted 16 Dec. 1966, C.A. Res. 2200 (X
21st Sess., U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 {entered into
[hereinafter ICESCR]. The ICESCR now has 160 states parties (the B
state that most recently became party to the Covenant on 23 Decem
8. ICCPR, supra note 7, art. 28.
9. ICESCR, supra note 7, arts. 19-21.
1 0. See Review of the Composition, Organization and Administrative Arrangements ot the
Sessional Working Croup of Governmental Experts on the Implementation of the In-
ternational Covenant on Economic, Social and Cultural Rights, adopted 28 May 1985,
ECOSOC Res. 1985/17, U.N. ESCOR, at 15, U.N. Doc. E/RES/1 985/85 (1985).

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1 48 HUMAN RIGHTS QUARTERLY Vol. 32
is now composed of independent experts and has the

ing and examining states parties' reports, like any ot
body within the UN human rights system. The CESCR m
in 1987 and has, since then, developed important pr
to the examination of states parties' reports and in t
Comments, which correspond to the Committee's interp
sions of the Covenant.11
Secondly, and contrary to what happened in the c
ICESCR had no mechanism for victims to commun
of social rights. In fact, the Optional Protocol to the
competence of the Committee to receive and consider c
individuals subject to its jurisdiction who claim to be
by that State Party of any of the rights set forth in th
instrument was adopted in relation to the ICESCR even
Protocol to the ICCPR and its communication system ha
of jurisprudence illuminating the content of treaty pro
no comparable jurisprudence has been developed at t
to clarify the content of the rights in the ICESCR.
A. Crossing the desert
After adoption of the two Covenants and of the two

the ICCPR, the world community devoted more atten
realization of civil and political rights than to economic
rights. However, in response, some within the Uni
lengthy process with the goal of re-establishing equa
of rights, namely through discussions related to the ne
ICESCR have a communications mechanism. Discussio
positive experiences witnessed by the Human Rights
the importance of the examination of specific cases b
body.
In 1 991 , four years after it began its work, the CESCR initiated the debate
on whether to draft an optional protocol to the Covenant. One year later in
1992, the Sub-Commission on Prevention of Discrimination and Protection
of Minorities Special Rapporteur on the "Realization of Economic, Social and
Cultural Rights," Danilo Turk, recommended that "accent ... be placed by
the United Nations on developing means to monitor consistently and reliably
violations of economic, social and cultural rights."13 Turk also recommended
11. Id
12. OPICCPR, supra note 2, art. 1 .
1 3 . The Realization of Economic, Social and Cultural Rights, Final
Danilo Turk, Special Rapporteur, U.N. ESCOR, Comrn'n on Hu
on Prev. of Discrim. & Protect, of Min., 44th Sess., Provisional
U.N. Doc. E/CN.4/Sub.2/1992/16 (1992).

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that the CESCR pursue its work on this issue with a goal
the exigencies of the eventual adoption of such an opt
Covenant on Economic, Social and Cultural Rights/'14
That same year, the CESCR prepared an analytical paper
an optional protocol to the International Covenant on
Cultural Rights/' which it then submitted to the Preparat
the Vienna World Human Rights Conference.15 The C
therein that
a system for the examination of individual cases offers the

the international community will be able to move toward
a significant body of jurisprudence in this field. As the exp
Rights Committee demonstrates such a development is e
social and cultural rights are to be treated as seriously as
Additionally, in a statement made in June 1993 durin

Human Rights Conference, the Committee remarked t
reasons to favor the adoption of a complaints mecha
which should be fully optional and allow for the pres
nications from individuals or groups who are alleged v
of Covenant rights.17
On the basis of these and other documents, the Wo
Human Rights adopted the VDPA, which reaffirms that a
universal, indivisible, and interdependent.18 The Declar
the Commission on Human Rights (CHR or the Commis
with the Committee on Economic, Social and Cultural
the examination of optional protocols to the Internatio
nomic, Social and Cultural Rights."19 Interestingly, althoug
protocols in the plural, the only proposal submitted to th
uniquely with an optional protocol foreseeing a commu
was the proposal that the Social Rights Committee had
14. Id. 1211.

15. Towards an Optional Protocol to the International Covenant on Economic, S
Cultural Rights, adopted 11 Dec. 1992, U.N. ESCOR, Comm. on Econ., Soc. &
Rts., 7th Sess., 1 5, U.N. Doc. A/CONF.157/PC/62/Add.5 (1993).
16. Status of Preparation, supra note 3, Annex II, 1 93.
17. Id. Annex I, 1 18.
18. Vienna Declaration and Programme of Action, supra note 1,15.
19. Id. 1 75.
20. During the Working Group's negotiations on the optional protocol, some of the
that were skeptical about the complaints procedure provided for in the Vienna
tion and Programme of Action (and more concretely the fact that it refers to '
in the plural) to argue that the optional protocol could have a different object
establishing a communications procedure. They suggested that the optiona
could, for example, serve to improve the reporting procedure before the Co
change the Committee's methods of work, and strengthen the participation of
the Committee's work.

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Three years later, in 1996, the Social Rights Com

draft optional protocol, which was submitted to the CH
suggested the creation of a mechanism for the exam
communications or complaints related to cases wh
violated their legal obligations under the Covenant. Acc
Social Rights Committee should receive and process the
The majority of the Committee members also expre
for a comprehensive approach that would enable vic
munications in cases of alleged violations of any of
in the Covenant.22 The text also contains several ru
conditions for the presentation of a communication
provisions on inquiry procedures or inter-state compla
Between 1998 and 2001, governments and se
submitted comments to the draft. The limited nu
submitting any comments to the draft indicates the li
accorded to a future optional protocol. These few
2 1 . Draft Optional Protocol to the International Covenant on E

Rights, Note by the Secretary-General, U.N. ESCOR, Comm'n
Provisional Agenda Item 14, 1 17 ', U.N. Doc. E/CN.4/1 997/1
22. Id 1 26.
¿5. Id.

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201 0 Optional Protocol to the ICESCR 1 5 1
governments of Croatia,24 Cyprus,25 Czech Republic,26 Ecuado

Georgia,29 Germany,30 Lebanon,31 Lithuania,32 Mauritius
24. Croatia shared the view of the Committee on Economic, Social and Cu
economic, social, and cultural rights are "fully justiciable/' suggested th
develops "a clear system of indicators with the purpose of defining the
scope of rights that has to be followed irrespectively of the economic
country involved;" and made some "minor" drafting suggestions to the
Draft Optional Protocol to the International Covenant on Economic, Soc
Rights, Note by the Secretariat, U.N. ESCOR, Comm'n on Hum. Rts., 55
U.N. Doc. E/CN.4/1 999/1 12 (1999).
25. Cyprus simply expressed "full support [to] the elaboration of a draft optional protocol."
Draft Optional Protocol to the International Covenant on Economic, Social and Cultural
Rights, Report of the Secretary-General, U.N. ESCOR, Comm'n on Hum. Rts., 54th Sess.,
at 2, U.N. Doc. E/CN.4/1 998/84 (1998).
26. The Czech Republic seemed to support the idea of an optional protocol and made
several drafting suggestions to the text proposed by the Committee. See Draft Optional
Protocol to the International Covenant on Economic, Social and Cultural Rights, Report
of the High Commissioner for Human Rights, U.N. ESCOR, Comm'n on Hum. Rts., 56th
Sess., at 3-4, U.N. Doc. E/CN. 4/2000/49 (2000).
27. Ecuador also supported the adoption of a draft protocol, made some specific propos-
als on the instrument's language, and recommended that the term "optional should be
deleted in order to make it possible for States parties to the Covenant to be obliged to
accede to the adjective instrument. In that way, both instruments would become more
effective and the application of their substantive provisions would be easy to ensure."
Rights, Report of the Secretary-General, supra note 25, at 3-4.
28. Finland also supported the elaboration of an optional protocol that provides a system
of individual communications that "enhance!] the legal protection of the rights of indi-
viduals. The proposed optional protocol would also be a step forward to strengthen the
implementation of economic, social and cultural rights. It would be a means to ensure
that the rights guaranteed in the Covenant are fully recognized and implemented in
national practice and legislation." Id. at 4-5.
29. The government of Georgia considered that "granting of individuals or groups the right
to submit communications concerning on-compliance with the Covenant [was] a logical
step." Id. at 5.
30. Germany expressed a cautious position, having doubts as to whether a complaints pro-
cedure would in fact help to better implement economic, social, and cultural rights. The
German government used three types of arguments in order to sustain its position. On
the one hand, it asserted that the implementation of the Covenants' rights "depends upon
the economic, social and cultural framework created by individual countries' general
policies, as well as upon external conditions, which often cannot be enforced under
national law." Germany also explained their position that "frequent lack of justiciability
threatens to render ineffective the complaints procedure," which might then "lead to the
complaints procedure losing credibility." Finally, the German Government pointed to a
possible collision between the complaints procedure and the procedure for examining
reports by the Committee on Economic, Social and Cultural Rights. Id. at 5.
31 . The Lebanese government also seemed implicitly to support the drafting of an optional
protocol. However, it proposed that the text reflects and confirms "the relationship be-
tween the realization of development and the realization of the other Covenant rights."
Rights, Report of the High Commissioner for Human Rights, supra note 26, at 6.
32. Lithuania supported the draft optional protocol. Id. at 6-7.
33. Mauritius "welcome[d] the principle of an individual communications procedure under
the ICESCR." Draft Optional Protocol to the International Covenant on Economic, Social
and Cultural Rights, Report of the High Commissioner for Human Rights, U.N. ESCOR,
Comm'n on Hum. Rts., 57th Sess., at 3, U.N. Doc. E/CN. 4/2 00 1/62 (2000) [hereinafter
Draft Optional Protocol, Report of the High Commissioner for Human Rights ll' .
34. Mexico referred to the importance it attaches "to the principles of the interdependence
and indivisibility of all human rights" and therefore supported drawing up an optional

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Norway,35 Portugal,36 Sweden,37 and Syrian Arab R

comments by states were, with some few exceptions
did not go into much detail.
In February 2001, pursuant to paragraph 7(b) and (f)
on Human Rights resolution 2000/9,39 the OHCHR
Commission of Jurists organized a workshop on the jus
social, and cultural rights. The workshop was an oc
justiciable character of and the possibility to adjudicate
protocol to the International Covenant on Economic, Social an

mentioned that the optional protocol "should as far as possible r
Protocol to the International Covenant on Civil and Politica
Protocol to the International Covenant on Economic, Social a
by the Secretariat, Addendum, U.N. ESCOR, Comm'n on Hu
U.N. Doc. E/CN. 4/1 999/1 12/Add.1 (1999).
35. Norway supports the establishment of a complaints proce
principle of indivisibility, interdependence and ¡nterrelatedness
would "also be a step forward towards strengthening econo
rights." However, the government of Norway also expressed co
constraints of the human rights mechanisms and the limited c
on Economic, Social and Cultural Rights." Draft Optional Pro
Commissioner for Human Rights II, supra note 33, at 3-4.
36. The government of Portugal expressed full support to the d
of a draft optional protocol. It expressed a preference for th
Covenant (which is more prudent and restrictive), rather than
tory application" used under the Additional Protocol to the
Portugal also supported the Committee's proposal that the op
all the rights contained in article 1 to 15 of the Covenant. Id
37. Sweden expressed doubts regarding the drafting of an option
on the fact that for "an individual complaint procedure to f
efficient way, the State obligations to which such a procedure
to be precise," which is not the case of the rights contained in
pointed to differences in nature between the rights contained
ICESCR and to its belief that economic, social, and cultural right
achieved," rather than "protected and respected." The governme
an individual complaint procedure under the ICESCR would n
illuminating problems or deficiencies when it comes to the step
realize a particular right." Sweden also pointed to a possible ove
of the Human Rights Committee and of the Committee on Econ
Rights if the proposed optional protocol were to be adopted, giv
have some common rights. This would create a danger that "dive
developed when handling an individual complaint. Such diverge
problems for States which have declared themselves bound b
which would face a situation of having to adapt themselves to in
is not consistent." Draft Optional Protocol to the International
Social and Cultural Rights, Note by the Secretariat, Addendu
38. The Syrian Arab Republic implicitly supported the draft
several drafting suggestions thereto - many of which are outside t
complaints procedure and are aimed at creating new substan
the right to development or the right to social justice). Draft
International Covenant on Economic, Social and Cultural Rights,
General, supra note 25, at 6.
39. Question of the Realization in All Countries of the Economic
Contained in the Universal Declaration of Human Rights and
enant on Economic, Social and Cultural Rights, and Study of
the Developing Countries Face in Their Efforts to Achieve The
17 Apr. 2000, C.H.R. Res. 2000/9, U.N. ESCOR, Comm'n on
52d mtg., at 69, 11 7(b), 7(f), U.N. Doc. E/CN. 4/2000/1 67 (

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the workshop, participants made different proposals on the m

way to move the process forward, namely through a) asking
more information on the draft optional protocol, b) referring
protocol to the Committee on Economic, Social and Cultu
the Sub-Commission for the Protection and Promotion of Hum
review, c) establishing an inter-sessional working group of
on Human Rights, d) moving to the immediate discussion
the optional protocol by the Commission, e) appointing an
to review the text and report back to the Commission, an
additional seminars to continue considering the issues.40
Obviously, no conclusions or recommendations came ou
shop, but it was an important forum to debate some leg
matters related to a complaints procedure, with the partic
of experts and NGOs, but also of states' representatives. It
organization of the workshop that created the necessary
bling the Commission on Human Rights to move the proce
optional protocol further.41
Hence, in 2001 (five years after the Committee had fin
and ten years after it had started discussions on an option
Commission on Human Rights, at its fifty-seventh sessio
point, by resolution 2001/30, an Independent Expert on
an Optional Protocol to the International Covenant on Ec
and Cultural Rights and requested him to present a report to
session of the CHR that would take place in 2002.42 The
the Independent Expert was a concession made by "pro-op
states to "skeptic" states. In fact, the former argued that the
40. Report on the Workshop on the Justiciability of Economic, Social

with Particular Reference to the Draft Optional Protocol to the Inter
on Economic, Social and Cultural Rights, U.N. ESCOR, Comm'n on
Sess., at 15, U.N. Doc. E/CN. 4/2001 /62/Add.2 (2001).
41 . Civil society in general and civil society organizations in particular
in the negotiations of the Optional Protocol to the ICESCR. They organ
meetings and seminars and lobbied governments and Permanent Mi
they managed to gain the trust of the states' delegates; it was not
states' delegations asking them for advice and to clarify complicated
debate. The NGOs created an International NGO Coalition for an Op
the ICESCR that significantly contributed to the positive outcome of
The Coalition is now fighting for the entry into force of the Optional
information on the Coalition's work, see International NGO Coalitio
Protocol to the ICESCR, available at http://www.opicescr-coalition.org
42 . Question of the Realization in All Countries of the Economic, Social
Contained in the Universal Declaration of Human Rights and in the
enant on Economic, Social and Cultural Rights, and Study of Specia
the Developing Countries Face in Their Efforts To Achieve These Hum
20 Apr. 2001, C.H.R. Res. 2001/30, U.N. ESCOR, Comm'n on Hum
at 156, U.N. Doc. E/CN. 4/2 00 1/1 67 (2001).

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with questions regarding the feasibility of an option

through the creation of an open-ended working grou
exchange views on the issue and come up with a dec
hand, the latter argued that it was still too prematu
ing group because the issues of the justiciability of
cultural rights and the feasibility of a complaints m
further discussion. The compromise was to appoint a
on the Question of an Optional Protocol to the Intern
Economic, Social and Cultural Rights. This was obviou
decision given that the "skeptic" states simply wanted
tion of a working group.
Some months after on 15 August 2001, the Sub-C
Promotion and Protection of Human Rights adopted
that an open-ended working group of the CHR woul
group to examine the question of a legally binding instru
optional protocol to the ICESCR.43 Therefore, the Sub-Co
CHR to establish the open-ended working group with the
the examination of an optional protocol to the ICESC
In 2002, the Independent Expert (IE or the Expert) pre
the CHR in which he suggested that the CHR confirm th
with regards to the possible adoption of an optional pr
that a Working Group not be immediately created bec
created many doubts, uncertainties, and even opposition
and that his own mandate be renewed.44 Following th
the CHR renewed the Expert's mandate for another ye
he present a further report to the CHR during its follow
asked the Expert to study in greater depth questions per
and scope of states parties' obligations under the Cove
justiciability of economic, social, and cultural rights; a
of benefits of a communication mechanism.45
43 . Optional Protocol to the International Covenant on Economic,

adopted 15 August 2001, Sub-Comm'n Res. 2001/6, U.N. ESC
Rts., Sub-Comm'n on Promotion & Protect, of Hum. Rts., 53d
E/CN.4/2002/2 (2001).
44. Status of the International Covenants on Human Rights, R
Expert on the Question of a Draft Optional Protocol to the Int
Economic, Social, and Cultural Rights, U.N. ESCOR, Comm'n
Rts., 58th Sess., Provisional Agenda Item 10, 11 53, 55, U.N
(2002).
45. Status of the International Covenants on Human Rights, Report by Mr. Hatem Kotrane,
Independent Expert on the Question of a Draft Optional Protocol to the International
Covenant on Economic, Social, and Cultural Rights, U.N. ESCOR, Comm'n on Econ.,
Soc. & Cult. Rts., 59th Sess., Provisional Agenda Item 10, U.N. Doc. E/CN.4/2003/53
(2003).

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Also in 2002, the CHR established an open-ended wor

study options regarding the elaboration of an optional proto
which would start its work in 2003 or 2004.46 In normal
decision by the CHR goes into effect immediately. In this
tion's effects were "frozen" for one year. The CHR justif
formally establish the working group one year later in 2003
away because of the lE's recommendation that it not be imm
However, an important political argument to push for an
sion regarding the creation of the working group resided in
that for the only time in the CHR's existence, the United
member state. This was not a negligible circumstance, given
States had been skeptical regarding the CHR's so-called
tion on economic, social, and cultural rights; were open
creation of the working group; and were against the creation
protocol to the International Covenant on Economic, So
Rights. Therefore, the resolution's main author, Portugal, cl
that if the CHR made the decision to create an open-end
in 2002 even though the group would not be formally cr
there might be a great chance that the decision could be
a vote. Even though in legal terms, no difference exists betw
adopted with or without a vote, in political terms, an adopti
out a vote could have an impact upon the future working gr
credibility, and atmosphere for negotiations. Therefore, alth
states favoring an optional protocol were strongly oppos
that postponed the working group's creation, they also u
was possible to adopt this particular resolution without a
them that this was perhaps the wisest way to move forward
In his second report of 2003, the IE concluded that
the adoption of a draft optional protocol to the International C

nomic, Social and Cultural Rights would, no doubt, contribu
to promote, in accordance with the principles contained in t
United Nations, "recognition of the inherent human dignity an
inalienable rights of all members of the human family [which]
of freedom, justice and peace in the world/'47
46. Question of the Realization in All Countries of the Economic, Socia

Contained in the Universal Declaration of Human Rights and in th
enant on Economic, Social and Cultural Rights, and Study of Speci
the Developing Countries Face in their Efforts to Achieve these Hum
22 Apr. 2002, C.H.R. Res. 2002/24, U.N. ESCOR, Comm'n on Hum
49th mtg., at 116 1 9, U.N. Doc. E/CN.4/2002/200 (2002).
47. Status of the International Covenants on Human Rights, Report by
Independent Expert on the Question of a Draft Optional Protocol t
Covenant on Economic, Social, and Cultural Rights, supra note 45,

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And ¡n the report's final paragraph, the IE recomme
Commission on Human Rights [to] adopt a resolution

the decision contained in its resolution 2002/24, [. .
an open-ended working group of the Commission wit
options regarding the elaboration of an optional proto
Covenant on Economic, Social and Cultural Rights.48
On 22 April 2003, the CHR adopted resolution 2

established a working group to consider options reg
of an optional protocol.49 An important issue regardin
creation related to the mandate that the CHR assig
"prices" that the Portuguese authors of the resolutio
the text adopted by consensus was that they drafte
mandate in such a way that there would be a cons
relation to its course of action. The working group was
options regarding the elaboration of an optional protoc
Covenant on Economic, Social and Cultural Rights" a
an optional protocol to the International Covenant
Cultural Rights." The authors aimed this formulation a
of states within the CHR: those who wanted to dra
would be able to argue that their "option" consisted
a text, whereas other states might still be able to defe
tion, like strengthening the working methods of the C
Social and Cultural Rights.50 This circumstance would h
on the future activities by the open-ended working
48. Id 1 76.
49. Question of the Realization in All Countries of the Economic, Social and Cultur
Contained in the Universal Declaration of Human Rights and in the Internation
enant on Economic, Social and Cultural Rights, and Study of Special Problems
the Developing Countries Face in Their Efforts to Achieve These Human Rights,
22 Apr. 2003, C.H.R. Res. 2003/18, U.N. ESCOR, Comm'n on Hum. Rts., 59th
55th mtg., 1 13, U.N. Doc. E/CN.4/2003/L.11/Add.3 (2003).
50. The author prepared the Portuguese drafts of the omnibus resolution on economic, social,
and cultural rights in 2001, 2002, and 2003 and chaired the respective negotiations
within the Commission on Human Rights. The information contained here is based on
discussions held between states during the resolutions' respective informal negotiations
in Geneva, in which the author participated. Because these were informal negotiations,
by their very nature, no official and public documents containing any of the information
here transmitted exist. Hence, the elements disclosed are based on personal notes taken
and internal reports prepared by the author at the time of these negotiations.

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B. The Commission on Human Rights' Working Group (W

Options
The CHR Working Group (WG) met three times (2004, 2005, and 2006)51
with a mandate to examine "options regarding ... an optional protocol to
the ... (ICESCR)/'52 These three meetings included the presence of dozens
of states' representatives; several human rights experts; members of treaty
monitoring bodies of the ILO, UNESCO, African, Inter-American, and Eu-
ropean Human Rights systems; and representatives of nongovernmental
organizations.
/. The First Session of the WG (23 February to 5 March 2004)
In the first session, human rights experts participated in several organized

discussions. Some skeptical states argued for a more theoretical debate
on these issues, even suggesting that the working group should have a
"seminar-like" nature. Several special procedures mandate holders as well
as members of treaty monitoring bodies took part in an interactive dialogue
with the working group.53 Their interventions were generally aimed at, on
the one hand, demonstrating how an optional protocol could have a posi-
tive impact on the work that special procedures mandate holders carried
out and, on the other hand, showing how treaty monitoring bodies with a
connection to civil and political rights were already adjudicating economic,
social, and cultural rights.54
The WG focused on the discussion of issues related to the nature and
scope of states parties' obligations under the ICESCR. Several delegations
5 1 . Report of the Open-ended Working Group To Consider Options Regarding the Elabora-
tion of an Optional Protocol to the International Covenant on Economic, Social and
Cultural Rights on Its First Session, U.N. ESCOR, Comm'n on Hum. Rts., 60th Sess.,
Agenda Item 10, U.N. Doc. E/CN. 4/2004/44 (2004) [hereinafter First Session]; Report
of the Open-ended Working Group To Consider Options Regarding the Elaboration of
an Optional Protocol to the International Covenant on Economic, Social and Cultural
Rights on Its Second Session, U.N. ESCOR, Comm'n on Hum. Rts., 61st Sess., Agenda
Item 10, U.N. Doc. E/CN. 4/2005/52 (2005) [hereinafter Second Session]; Report of the
Open-ended Working Group To Consider Options Regarding the Elaboration of an Op-
tional Protocol to the International Covenant on Economic, Social, and Cultural Rights
on Its Third Session, U.N. ESCOR, Comm'n on Hum. Rts., 62d Sess., Agenda Item 10,
U.N. Doc. E/CN.4/2006/47 (2006) [hereinafter Third Session].
52. Second Session, supra note 51, 1 1.
53. Raul Hunt, Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest
Attainable Standard of Physical and Mental Health; Mi loon Kothari, Special Rapporteur
on Adequate Housing as a Component of the Right to an Adequate Standard of Living;
Eibe Riedel, Member of the Committee on Economic, Social and Cultural Rights (CESCR);
Martin Scheinin, Member of the Human Rights Committee (HRC); and Régis de Gouttes,
Member of the Committee on the Elimination of Racial Discrimination (CERD) all took
part in the interactive dialogue.
54. First Session, supra note 51,11 28, 29, 31, 39.

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158 HUMAN RIGHTS QUARTERLY Vol. 32
addressed the potential cost implications of the im

provisions of the Covenant. The WG debated in mo
of the justiciability of economic, social, and cultural
focused on the question of whether, and to what ex
and cultural rights are able to be adjudicated under a
to ICESCR, and whether the proposed optional proto
protection of economic, social, and cultural rights.55 A
made reference to case law from national and regional c
the fact that economic, social, and cultural rights w
by some courts demonstrated that these rights coul
subject to a complaints procedure under ICESCR. Con
tions argued that a complaints procedure would be
of the particular character of economic, social, and c
equally debated "the benefits of an optional protocol
complementarity with other mechanisms/'56
At the end of the first session, the chairperson of th
recommendations to be submitted to the CHR. Two stat
and the Russian Federation) objected to the propose
blocked the possibility of consensus at the Working Gro
United States formal justification for opposing the chai
that, in their opinion, "the great majority of the states
working group did not support the drafting of an op
time," "the idea of an optional protocol as proposed by t
whose time is yet not ripe," and the delegation was
of continuing any discussions on a complaints proce
economic, social, and cultural rights.
The United States delegation even suggested to the
"declare this working group a success as it has provid
for ideas and opinions to flow, and has been able to con
consensus among states parties is of such fundament
that there is no realistic prospect of resolving such diff
further meetings of the Working Group." However,
told the chairperson that, had the report of the Workin
contained so-called attributions (the names of the st
in the negotiations as well as an indication of their p
topic), thus enabling the United States views to be
final report, the US delegation could have joined co
States clearly understood that the working group wo
and would have been able to go along with that inev
long as their position of mistrust regarding econom
55. Id 1 58-66.
56. See id 1 67-74.

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2010 Optional Protocol to the ICESCR 1 59
rights was clearly pictured in official UN documents (th

report).57
The Russian Federation opposed the Chairperson's proposal, deeming it
too weak; in the Russian delegation's view, the WG should have immediately
received a drafting mandate. According to the Russian Federation, the simple
renewal of the WG's mandate would just provide for states
to repeat the work which was done this year. Therefore, Madame Chair, the
Russian delegation would like to reserve its position . . . until the next session
of the Commission on Human Rights and suggest to other delegations which
have taken an active part in this session of the working group to consider how in
the course of the coming session it might be possible to formulate more clearly
a future plan for the work of the group for next year.58
Absent a consensus, the chairperson took "the sole responsibility for the ...
recommendations" that she decided to forward "for consideration by the
Commission."59 The chairperson noted that the WG reached no consensus
on whether to start drafting an optional protocol, and she therefore suggested
"a deepening of the rich debate of its first session."60 She then proposed that
the Commission "[r]enew the mandate of the open-ended working group
for a period of two years to consider options regarding the elaboration of
an optional protocol to the International Covenant on Economic, Social and
Cultural Rights . . . under international human rights instruments and under
the United Nations system."61 During its 2004 session, the CHR decided to
follow the recommendations of the chairperson and renewed the mandate
of the WG for a period of two years.62
57. This was, however, not possible, given the immense workload of the UN editors and
the one week proximity between the Working Group's first session and the Commission
on Human Rights' annual session (which was always held during six weeks, starting
in the second half of March). In addition, reports with attributions are more sensitive
documents and open for comments by delegations for a longer period of time.
58. United Nations Open-ended Working Group To Consider Options Regarding the Elabo-
ration of an Optional Protocol to the International Covenant on Economic, Social and
Cultural Rights, Transcript for Day Ten of the Working Group, Cassette Number 84-86 (5
Mar. 2004) (on file with the author). Curiously, some authors have used this opposition
by the two states to assert that the Working Group's first session "ended in disarray"
and that the "participating States were in sharp disagreement over the viability of the
proposal." Michael J. Dennis & David P. Steward, Justiciability of Economic, Social
and Cultural Rights: Should There Be an International Complaints Mechanism To Ad-
judicate the Rights to Food, Water, Housing and Health?, 98 Am. j. Int'l L. 462 (2004).
The Holy See rightly and appropriately commented, "[l]t would be a pleasant miracle
were we to reach consensus during this first meeting." The Holy See, Statement During
the First Meeting of the Optional Protocol to the International Covenant on Economic,
Social and Cultural Rights Working Group (27 Feb. 2004) (on file with the author).
59. First Session, supra note 51, 1 75.
60. Id. f 76.
61. Id. 1 76-77.
62. See Question of the Realization in All Countries of the Economic, Social and
Rights Contained in the Universal Declaration of Human Rights and in the Intern

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2. The Second Session of the WG (10 to 20 January
During the WG's second session, the High Commissioner

Louise Arbour, addressed the group and mentioned t
[a] petition system at the international level can help p

reasonable interpretation of universal norms in the prov
domestic level. . . . [l]t can also serve to establish if the
tive or appropriate implementation of existing laws and
determine the reasonableness of such laws and policies
The Working Group devoted its second session to di

body experts (on how an optional protocol might wo
special rapporteurs (on how an optional protocol m
work of special procedures), with regional human ri
economic, social, and cultural rights have been enf
level and the relationship with an optional protocol
with ILO and UNESCO experts (on the complementa
mechanism with existing complaints procedures fo
cultural rights), and on options for an optional protoco
Covenant on Economic, Social and Cultural Rights, and St

Which the Developing Countries Face in Their Efforts to Achie
adopted on 19 Apr. 2004, C.H.R. Res. 2004/29, U.N. ESCOR,
60th Sess., at 102, 108 1 14, U.N. Doc. E/CN. 4/2 004/1 27 (2
63. Louise Arbour, U.N. High Commissioner for Human Righ
Session to the Open-Ended Working Group Established by th
Rights (14 Jan. 2005), available at http://www.unhchr.ch/huric
ECAE2629449C1EBC.
64. The invited Special Rapporteurs were Jean Ziegler, Special Rapporteur on the right to
food; Emmanuel Decaux, Special Rapporteur of the Sub-Commission on the Promotion
and Protection of Human Rights on the universal implementation of international human
rights treaties; and Doudou Diène, Special Rapporteur on contemporary forms of racism,
racial discrimination, xenophobia and related intolerance. The interactive dialogue with
a panel of experts from other UN organizations with supervisory mechanisms relevant to
some economic, social, and cultural rights counted with the presence of Lee Swepston
from ILO and Vladimir Volodin from UNESCO. The treaty body experts who attended
another interactive panel were Eibe Riedel, member of the Committee on Economic,
Social and Cultural Rights; Andreas Mavrommatis, member of the Committee against
Torture (CAT); and Goran Melander, former member of the Committee on the Elimination
of Discrimination against Women (CEDAW). Finally, two experts from regional human
rights protection systems were invited: E.V.O. Dankwa, Commissioner of the African
Commission on Human and Peoples' Rights, who addressed the working group about
the African regional system, and Mr. Kristensen, Deputy Executive Secretary of the Com-
mittee of Independent Experts (European Committee of Social Rights), who explained
the state reporting system and collective complaints procedure under the European
Social Charter. After his presentation at the working group, E.V.O. Dankwa met with
the African Group in a closed session, which proved to have had a decisive impact on
conjuring the African Group's unanimous support to the optional protocol. Dankwa's
main argument was that an optional protocol would not create anything substantially
different than what already existed within the African Human and People's Rights system.
After this meeting, a shift in the African position was palpable, and at the end of the
session, the African Group was in favor of drafting an optional protocol.

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time to discussions pertaining to the draft optional protocol

CESCR65 and a Report by the Secretary General containin
summary of existing communications and inquiry practice
The subjects discussed and the questions raised by state
session were not very different from those during the first
the tone and atmosphere of discussions significantly im
number of voices favoring an optional protocol considerably
there were still divisions in the working group concerning th
an optional protocol, and there were additionally three m
issues splitting the working group. One of them regarde
whether an optional protocol should be of a comprehensive n
complaints regarding alleged violations of any of the righ
the ICESCR) or rather of an à la carte or limited character
was one of international assistance and cooperation, with the
defending an optional protocol that would be divided into at
"including one on international assistance and cooperation
into consideration General Assembly resolutions addressing t
nally, Saudi Arabia argued that the existing Committee on
and Cultural Rights should be granted a treaty body statu
other existing Committees before it could receive commu
Because of the opposition to her proposals at the end o
group's first session, the chairperson wanted to avoid ma
tions to the working group in case the same type of react
fore, in the middle of the session's second week, she info
the representative of Argentina, who was coordinating th
American and Caribbean States (GRULAC) that year, and as
he could try to persuade his regional group to introduce
The Argentinean diplomat agreed to put forward the prop
GRULAC. Other states with whom the chairperson also inf
65. See Second Session, supra note 51 , 1 1 95-99; see also Draft Opt
International Covenant on Economic, Social and Cultural Rights, Note
General, supra note 21, at 1-2.
66. See Second Session, supra note 51,11 85-94.
67. These states were Argentina (speaking on behalf of the Group of Latin American and
Caribbean States (GRULAC)), Belgium, Chile, Costa Rica, Croatia, Cuba, the Czech
Republic, Ecuador, Ethiopia (speaking on behalf of the African Group), Finland, France,
Germany, Mexico, Peru, Portugal, the Russian Federation, Spain, Slovenia, and Venezuela.
Second Session, supra note 51, 1 101. On the other hand, the representatives of Aus-
tralia, Canada, Japan, Poland, and the United States "had yet to be convinced that an
optional protocol with a communications mechanism would contribute effectively to
improving implementation of economic, social and cultural rights/' Id. 1 103.
68. Ethiopian Delegation, Statement of Ethiopia on Behalf of the African Group to the Sec-
ond Session of the United Nations Open-ended Working Group to Consider Options
Regarding the Elaboration of an Optional Protocol to the International Covenant on
Economic, Social and Cultural Rights (on file with the author).

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gave assurances that they would be able to support th

the chairperson had absolutely no assurances that the
not oppose the proposal. If that had happened, she w
been lacking the necessary political legitimacy to prep
Intriguingly, and even though they were present in t
"skeptic" states opposed the Argentinean proposal. Ra
focused on establishing a very exhaustive list of issu
would have to examine, trying to make the chairpers
impossible." Their strategy also raised the issue of the
lack of impartiality, asking her to "invite to the next w
known to have other opinions/'69
Therefore, at the end of the second session of the
behalf of GRULAC, asked the chairperson to prepar
containing elements for an optional protocol to the
facilitate a more focused discussion at the third sess
group."70 Delegations requested that the paper prese
analysis of all the various options for an optional pro
following 14 elements:
(a) The scope of rights subject to an optional protocol - wh

or "à la carte" - and the possibility of opting in or out of the
to specific rights or provisions in the Covenant; (b) The crite
complaints, including avoidance of duplication, and exhau
regional remedies; (c) The standing of individuals or gro
protocol; (d) The permissibility of reservations to the op
attribution to the CESCR of a mediation role for the friendly
(f) The authority to order interim measures; (g) The nature o
cultural rights, particularly in view of the risk of interferin
discussions about resource allocation; (h) Inquiry procedu
cooperation and assistance; (j) Cost implications of an opt
complaints mechanism; (k)The inclusion of an inter-State c
(I) The relationship between an optional protocol and exis
An analysis and assessment of the impact of an optional pr
implementation of economic, social and cultural rights at
The option of having no optional protocol.71
The chairperson submitted the document, called "Elem

protocol to the ICESCR - Analytical paper by the Chai
(Elements Paper), to the WG on 30 November 2005. 72 Th
69. Second Session, supra note 51, 1 104.

70. Id. 1 109.
71. Id.
72. Elements for an Optional Protocol to the International Covenant on
and Cultural Rights, U.N. ESCOR, Comm'n on Hum. Rts., 62d Sess.
CN.4/2006/WG.23/2 (2005) [hereinafter Elements for Protocol].

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nized the paper to address each of the fourteen elements. Dur

of preparing it, the chairperson convened an experts' me
Portugal, to discuss the Elements Paper's first draft. The mee
the invaluable input from experts from different regions of t
Philip Alston (Australia), Victor Dankwa (Ghana), Paula Escaram
Kamal Houssein (Bangladesh), Monica Pinto (Argentina), and
(Finland). In addition, three members of the CESCR- Virg
Giorgio Malinverni and Eibe Riedel - also participated in t
or submitted written comments on the paper's draft.73
The Elements Paper was divided into four parts. The first
a communications procedure, including the question of th
subject to a communications procedure, admissibility cri
proceedings on the merits, interim measures, views, and r
and a follow-up on decisions, recommendations, and rese
contemplated an inquiry procedure and Part III an inter-
Finally, Part IV handled cross-cutting issues, such as an o
and domestic decisions on resource allocation; relationshi
protocol to existing mechanisms; analysis and assessment
an optional protocol on improving implementation of econ
cultural rights at the national level; option of having no o
and international cooperation and assistance and the cost
protocol. It identified some questions that the WG shoul
decisions that should be made in view of drafting an op
and, in some cases, gave hints as to possible solutions for
reached on certain issues.74
3. The Third Session of the WG (6 to 17 February 2006)
The WG devoted its third session's program to discussing the Elements

Paper. An integral part of this meeting included an interactive dialogue
with a representative of the Inter-American Court on Human Rights on the
protection of economic, social, and cultural rights under the inter-American
human rights system.75
This session marked a significant turning point (that started to be felt in
the second half of the second session) in the negotiations because it witnessed
a momentous change in terms of the support for an optional protocol. In
fact, two regional groups supported the idea of drafting an optional proto-
col: "Brazil, on behalf of the Group of Latin American and Caribbean States
(GRULAC), . . . expressed full support for efforts to draft an optional protocol
and an extension of the Working Group's mandate,"76 and "Morocco (on
73. Id. 11 1-2.

74. Id.
75. Third Session, supra note 51, 1 99.
76. Id. 1 6.

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behalf of the Group of African States) expressed the hop

Group could reach a consensus at its third session to lay
the elaboration of an optional protocol/'77 Additional
Finland, Portugal, the Russian Federation, and Spain d
ment of an optional protocol, asserting that "the critical
had been reached to equip the Working Group with a
On the other hand, Australia, Japan, India, the Repub
United States argued that the option of not having
still needed further discussion, being that there were sti
issues.79 Moreover, "China, Cuba, Egypt, the Islamic
Nepal emphasized the importance of strengthening in
tion and assistance" and stressed that an optional pr
be applicable to all states parties, taking into account
of development.80 This change in the balance of forc
ing Group may have occurred for various reasons: b
matured; because delegates and states started to beco
with economic, social, and cultural rights; because th
examples of existing adjudication of economic, socia
at the national level given by NGOs; because there wa
the optional protocol by the invited experts; or becau
started to regard an optional protocol as an additional av
the right to development.81
The WG, even conscious of the fact that its mandat
same year and that the CHR (or its successor) would h
on the continuation of its mandate, decided not to pu
mendations. This was again due to the experience th
the end of the WG's first session: there was no consensus in the room as
to the way forward and trying to extract any decision from the WG would
certainly have had the same result as in 2004 and would probably have
had a negative effect on the positive atmosphere that was starting to grow
within the WG. Any such debate would have highlighted the persisting
divergences among states instead of building a common ground. Therefore,
the chairperson decided to abstain from putting forward any proposals and
to dissociate herself and the working group from "unpleasant" and politi-
cal debates, leaving any decision on the WG's future to the new Human
Rights Council.
77. id. 1 7.
78. id. 11 10, 16.
79. Id. 1111, 18.
80. id. 1 12.
81 . Egypt's Ambassador to Portugal at that time, Ibrahim Salama, was also the Ch
of the UN Working Group on the Right to Development. This circumstance and
that Egypt played a crucial role within the African Group might have been reas
the growing support for an optional protocol by the African Group.

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C. The New Human Rights Council: A Decisive Impetu

the Negotiations of an Optional Protocol
In June 2006, the newly created Human Rights Counc

tion 1/3 to extend the mandate of the WG for a perio
resolution also changed the WG's mandate, directing
tional protocol to the ICESCR. The Human Rights Counc
chairperson prepare a first draft optional protocol to
the negotiations. The Council specified, in this regard, th
include provisions corresponding to the various main appr
the chairperson's Elements Paper and take into accoun
during the sessions of the WG.82
After finishing a first version of the draft, the chairp
the advice of a number of human rights experts at anoth
Lisbon, Portugal, from 29 September to 1 October 20
of the CESCR (Virginia Brás Gomes, Giorgio Malinvern
as well as Martin Scheinin (Finland), Colin Gonsalves: (
movich (Argentina), and Victor Dankwa (Ghana) partic
chairperson then submitted the first draft optional p
2007.83 An explanatory memorandum that clarifies h
"sought to account for the various main proposals m
. . . negotiations" accompanied the draft.84
The draft kept some options open. For example, in
vidual communications, the draft included the possibi
approach as well as the possibility (in case the "comp
were to be chosen) of excluding Part I of the Covenant (on
determination) from the protocol's scope.85 The first
provision in Article 3 on collective communications th
language from the 1995 Optional Protocol to the Euro
which recognizes the right of "international non-governm
with consultative status before the United Nations Economic and Social
Council to submit communications alleging unsatisfactory application of
any of the rights set forth in the Covenant by a State Party."86 This Article 3
provision also enabled states parties to recognize the right of any national
nongovernmental organization within its jurisdiction to submit collective
communications.87
82. Third Session, supra note 51, 11 1,2.

83. Draft Optional Protocol to the International Covenant on Economic, Social and Cul-
tural Rights, U.N. GAOR, Hum. Rts. Council, 6th Sess., U.N. Doc. A/HRQ6/WG.4/2*
(2007).
84. Id. Annex II, 1 6.
85. Id. Annex I, art. 2 1 1.
86. Id. Annex I, art. 3 1 1 .
87. Id. Annex I, art. 3 1 2.

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The language of Article 8 of the draft, which pertains

of the merits of a claim, basically followed the langu
sions in other communications procedures. It added a
mandated the Committee,
[wjhen examining communications under the ... Protocol

paragraph 1 of the Covenant, [to] assess the reasonableness
the State Party, to the maximum of its available resources,
progressively the full realization of the rights recognized
all appropriate means.88
The draft also included a provision that prohibited an

protocol and an article on "Transfer of competences
foreseeing a simpler and quicker procedure for the trans
tee's responsibilities "by the present protocol" to another
to a successor of the present CESCR).89
/. The Fourth Session of the WG (16 to 27 July 200
The WG discussed the draft at its fourth session and

reading of the draft before the end of the first week of neg
of negotiations caught the WG's members by surprise
no further instructions that would make any changes in
during the first week. The WG devoted the second w
deepening the discussions on certain issues suggested
These issues were "the criteria to be used by the Com
communications" (Article 8§4), "scope of the optional
"international assistance and cooperation and . . . esta
(Articles 13 and 14), "admissibility criteria" (Article 4
(Article 5), and "friendly settlement" of dispute (Article
It is equally important to note that the Inter-America
man Rights prepared a "Negotiations Manual for the opti
ICESCR" that was distributed to delegations during the f
Institute, an independent international academic institut
inter-American system of international human rights pr
manual in order to give Spanish-speaking delegations a
information for the negotiations of the optional protoco
version of the manual was subsequently distributed to
WG's fifth session.
88. Id. Annex I, art. 8 14.

89. See id. Annex I, art. 21 .
90. See Report of the Open-ended Working Group on an Optional Protocol to the Interna-
tional Covenant on Economic, Social and Cultural Rights on Its Fourth Session, U.N.
GAOR, Hum. Rts. Council, 6th Sess., Agenda Item 3, 1 148, U.N. Doc. A/HRC/6/8
(2007) [hereinafter Fourth Session].
91 . Inter-American Institute of Human Rights, Negotiations Manual for the Optional Protocol
to the ICESCR (unpublished document, on file with the author).

8.9.36.176 on Mon, 20 Jun 2022 02:00:04 UTC
The negotiations were very technical and a true drafting

the words of John P. Humphrey,
Most of the delegates were . . . masters in the art of debate; so

politicians on the make, some were almost fanatically attached t
a few only occasionally if ever opened their mouths; but m
conscious of the historic role they were playing and rose to
In her opening statement, the chairperson noted that "[¡I

problem, [the] diversity [within the working group was] an
She argued that the WG's challenge was to agree on a text
for the years to come and which will hopefully make a d
lives of those for whom economic, social and cultural righ
mirage/'94 She asked delegates not to forget what the aim of
was and mentioned that "this WG will have to show its ab
behalf of those whose economic, social and cultural rights
who may benefit from an optional protocol."95
During the debates, delegations labeled Article 2 as be
and the heart of the draft protocol. Two regional groups (Af
American Groups), the NGOs, and some European states f
prehensive approach" and noted that "an à la carte approac
a hierarchy among human rights, disregard the interrelatedn
articles, amend the substance of the Covenant, disregard the
victims and defy the purpose of the optional protocol t
implementation of all economic, social and cultural right
(Australia, Greece, India, Morocco, Russia, and the United
"limited approach" that would exclude Part I of the ICESC
of the communications procedure.97 Another group of s
la carte approach that would allow states to limit the ap
procedure to only certain provisions of the Covenant. For th
a selective approach "would enable a larger number of S
parties to the protocol and allow States to limit the procedur
for which domestic remedies exist."98 In addition, Poland
92. John P. Humphrey, The Memoirs of John P. Humphrey, The First Di

Nations Division of Human Rights, 5 Hum. Rts. Q. 387 (1983).
93. Catarina de Albuquerque, Chairperson of the United Nations O
Group To Consider Options Regarding the Elaboration of an Optio
International Covenant on Economic, Social and Cultural Rights, Open
the Working Group's Fourth Session (16 Jul. 2007) (on file with auth
94. Id.
95. Id.
96. See Fourth Session, supra note 90, 1 33.
97. Part I of the Covenant is composed of one single provision, namely
right to self-determination. See ICESCR, supra note 7, art. 1 .
98. See Fourth Session, supra note 90, 1 37. mese states were Australia, uim
Germany, Greece, Japan, the Netherlands, New Zealand, Poland, the Repu
Russia, Switzerland, Turkey, the United Kingdom, and the United States.

8.9.36.176 on Mon, 20 Jun 2022 02:00:04 UTC
tablish a minimum number of articles that all State

accept/' and the Netherlands proposed adding a third p
"enumerating those provisions that may be excluded
Draft Article 3 on collective communications receive
from delegations (even from some of those that had
into the draft), and no state strongly argued for its ret
the case concerning draft Article 23 on the transfer of
In relation to Article 8§4, the United States sug
term "reasonableness" with the concept of "unreaso
a reference to "the broad margin of appreciation of th
mine the optimum use of its resources."102 Some state
Norway, Poland, and the United Kingdom) "expressed s
such 'unreasonableness' criteria."103
Furthermore, regarding draft Article 21 on the prohibition of reservations,
several states mentioned that a final decision on Article 21 would depend on
"the decision on the scope of the protocol in article 2."104 Notwithstanding
this statement, some delegations expressed a preference for a text that would
allow (even though implicitly)105 for reservations, mentioning however, that
reservations could not be used "to limit the scope of rights covered by the
procedure, but only to clarify how a State would go about implementing
its obligations under the protocol."106
At the end of the fourth session, the chairperson suggested to delega-
tions that the upcoming fifth session of the WG be divided into two parts
so that the work could be more productive. Having a space of at least two
months between the first and second parts of the fifth session would enable
delegations to seek additional instructions from their respective capitals,
increasing the possibility of progress in the fifth session. Delegations ac-
cepted this proposal, and the chairperson set the dates for the fifth session
for 4 to 8 February 2008 and 31 March to 4 April 2008. For the chairperson,
the division of the fifth session in two parts was also strategic because it
99. See Id. 1 1 38-39.

100. Id. 11 47-56.
101. See id. 1 144. Regarding draft Article 23, the opposition came from a group of
states that saw the provision as a 'Trojan horse" that would promote a "unified treaty
monitoring body" through the "backdoor" - something that these states had op-
posed in the past. However, the chairperson's intentions when drafting that provision
were completely different than promoting a unified body and had solely in mind
the process to rectify the Committee on Economic, Social and Cultural Right's le-
gal status, enabling a swifter transition from the present Committee to a future one.
102. Id. 1 95.
103. Id. 1 95.
104. Id. 1 139.
1 05. Id. India suggested deleting draft Article 2 1 . Greece, Poland, and Turkey suggested leav-
ing the matter "to be determined by the principles of international law." Id. 1 140.
106. Id. 1 141.

8.9.36.176 on Mon, 20 Jun 2022 02:00:04 UTC
would cause the impression among delegations that in

two meetings. Hence, there would be more chances to fi
protocol that year - a strategy that surprisingly did not ra
from skeptical states and that proved to be effective.
In light of the discussions held in the July 2007 meeting
son decided to prepare a revised draft optional protocol
available to delegations by 24 December 2007. 107 The ch
the initial draft on the basis of proposals for amendmen
fourth session of the WG, reflecting ideas from the report
sion. The chairperson mentioned in the letter to membe
the "revised draft [did] not aim to reflect all discussion
fourth session .... Rather, the draft [aimed] to reflect t
which concrete text was proposed and presented to the
its fourth session/'108 A memorandum containing explan
specific provisions and on how the chairperson "combin
posals in an effort to use the wording that seemed most
accompanied the text.109
2. The Fifth Session of the WG (4 to 8 February and 3

April 2008)
In the first part of the fifth session, delegations welcomed the revised draft
as a way to facilitate the negotiation process and accomplished another full
reading of the draft text. In her opening statement, the chairperson reminded
delegates that the WG found itself at a crucial moment
not only because we are starting to make decisions, but also because these
decisions will be crystallized and will therefore become international human
rights law. We will have to find solutions which are obviously acceptable to us,
that might enable us to ratify the optional protocol in the future, but we should
strive also at solutions which ensure a good and strong protection for victims
of human rights violations.110
The chairperson finished her statement with a quote by Hernán Santa Cruz,
the Chilean Representative to the Human Rights Commission at the time the
Universal Declaration of Human Rights and the Human Rights Covenant or
1 07. See Revised Draft Optional Protocol to the International Covenant on Economic, Social
and Cultural Rights, U.N. GAOR, Hum. Rts. Council, 8th Sess., U.N. Doc.A/HRC/S/
WG.4/2 (2007) [hereinafter Revised Draft Optional Protocol 200A-
108. Id. 1 3.
109. Id. 1 4.
110. Catarina de Albuquerque, Chairperson of the United Nations open-ended Working
Group to consider options regarding the elaboration of an Optional Protocol to the
International Covenant on Economic, Social and Cultural Rights, Opening Statement at
the Working Group's Fifth Session (4 Feb. 2008) (on file with author).

8.9.36.176 on Mon, 20 Jun 2022 02:00:04 UTC
Convention was being negotiated, who said, "In dra

acceptance by all States Members of the UN, it [is]
a Convention which [is] based on the lowest standa
also urged states not to "forget those we are now work
victims of violations of economic, social and cultural ri
in their respective opening statements, several dele
sixtieth anniversary of the Universal Declaration of Hu
an excellent occasion for adopting an optional prot
During the debates, delegations still focused much
2, putting a great deal of the same antagonistic pos
Several delegations again supported the deletion of draf
tive communications.113 Regarding draft Article 4,
and the United Kingdom proposed a new subparagra
threshold of 'significant disadvantage/ unless the c
serious issue of general importance." This proposal met
eral delegations because it "would seem to imply tha
be considered insignificant, which was unacceptable
supported by a significant number of states.
In relation to draft Article 5 on interim measures, "
proposed adding 'bearing in mind the voluntary nature
end of the paragraph."115 However, other delegation
because "the views and requests of treaty bodies . . .
voluntary in nature."116 Norway and Sweden accept
agreed with the proposed language.
With regard to Article 8, the most controversial issu
delegations pertained to paragraph 4. Some states in
of an "unreasonableness" criteria, adding a reference to
wide margin of appreciation" as well as mentioning the
determine the "appropriate policy measures and allo
111. Summary Record of the Twenty-Ninth Meeting, U.N. ESC

2d Sess., 7, U.N. Doc. E/CN.4/AC.1/SR.29 (1948).
112. Revised Draft Optional Protocol 2007, supra note 107, 1
proposed the inclusion of a qualifier when referring to the
that would be subject to the communications procedure. For
Poland, and Sweden favored retaining a significant violation
to limit the new orocedure to onlv address cases affecting "direct" victims.
113. Id. 1 42. However, many states, while not supporting the collective communications
provision, expressed support to the proposal aimed at giving NGO's amicus curiae
standing.
1 1 4. Report of the Open-ended Working Group on an Optional Protocol to the International
Covenant on Economic, Social and Cultural Rights on Its Fifth Session, U.N. GAOR Hum.
Rts. Council, 8th Sess., Agenda Item 3, 1 59, U.N. Doc. A/HRC/8/7 (2008) [hereinafter
Fifth Session].
115. Id. 1 66.
116. Id.

8.9.36.176 on Mon, 20 Jun 2022 02:00:04 UTC
in accordance with domestic priorities/'117 Numerous delegat

accept these proposals.118 With regard to Articles 13 and 1
tions opposed the establishment of a trust fund, "noting the
violations to funding, the risks of duplicating existing Unite
and the practical difficulties in managing such a fund/'119
Article 17, pertaining to the Committee's Rules of Proc
the subject of a heated debate because Egypt, on behalf of th
noted that the provision "should either indicate element
in the rules of procedure or be deleted."120 Japan, on the
"proposed adding [to that provision] that the States parti
on or make proposal for the rules of procedure, which w
by the Committee."121 In her closing statement at the end of
the fifth session on 8 February, the chairperson asked de
instructions from their respective governments in order to f
tions at the April meeting.
Between the February and the April meetings of the WG,
son held informal consultations with all interested delegat
had bilateral meetings with almost thirty different missions
and the Group of Facilitators of the optional protocol. S
open-ended informal meetings with all delegations. The m
out to be excellent occasions to better understand each d
bottom lines, the reasons behind each proposal made, and
for compromise. During these meetings, the chairperson
to share with delegations a third revised draft optional proto
which the meeting participants based their discussions.
The second part of the fifth session started with the chairp
statement where she asked "all delegations to take the floor,
that we are at a 'problem solving' stage of our negotiation
to avoid repeating arguments made at previous sessions
contained in past reports of this WG."122 This time, the chai
Albert Einstein, who once said that it is not very wise "to do
over and over and expect different results."123 The chairpers
117. Id 1 91.
118. Id. 1 1 14. These delegations were Argentina, Bangladesh, Chile, Costa Rica, Ecuador
Finland, France, Germany, India, Liechtenstein, Mexico, Portugal, the Russian Feder
tion, and Sri Lanka. Id.
119. Id
120. Id 1 123.
121. Id 1 126.
122. Catarina de Albuquerque, Chairperson of the United Nations Open-ended Working
Group To Consider Options Regarding the Elaboration of an Optional Protocol to the
International Covenant on Economic, Social and Cultural Rights, Opening Statement to
the Second Session of the Working Group's Fifth Session (31 Mar. 2008) (on file with
author).
123. Id

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saying that the challenge was to "come up with possi

mise proposals to solve the difficulties that we are still f
these proposals should have been tested/ discussed b
ested delegations that have differing views on the m
chairperson also mentioned that she saw the WG
as a group of privileged people. We have at the reach of o

of truly making history and producing a legal text that w
positively affecting and even changing the lives of peopl
is therefore crucial to always remember that we are not
at the Ralais des Nations in Geneva. We are negotiating
outside this room, that we probably have never met, the
not even know that this Working Group exists, but for who
of the optional protocol might be a tool to ensuring digni
their lives. We should bear them in mind during the week t
The High Commissioner for Human Rights also a

part of the WG's fifth session and stressed that the est
munication procedure under the ICESCR
will truly be a milestone in the history of universal human

strong and unequivocal message about the equal value and
man rights [and] putfting] to rest the notion that legal an
are not relevant for the protection of economic, social and
As mentioned above, the second part of the fifth se

new revised version of the optional protocol.127 Mor
had also prepared some additional language suggestio
e-mail to all missions in Geneva. After the High Com
the chairperson shared with the WG her hope that "in
be able to adjust and agree on the draft articles con
HRC/8/WG.4/3" and therefore proposed that "we proce
article (and when necessary paragraph-by-paragraph)
text/'128 The chairperson also expressed her desire th
124. Id.
125. Id
126. Louise Arbour, High Commissioner for Human Rights, Statement to the Op
Working Group On an Optional International Covenant on Economic, Social a
tural Rights (31 March 2008), available at http://www.unhchr.ch/huricane/hurica
view0l/56935B5FB6A5B376C12574250039EAE0?ODendocument.
127. Revised Draft Optional Protocol to the International Covenant on Economic, Social
and Cultural Rights, Letter from the Chairperson-Rapporteur, Catarina de Albuquerque,
to the Members of the Open-ended Working Group on an Optional Protocol to the
International Covenant on Economic, Social and Cultural Rights, U.N. GAOR, Hum.
Rts. Council, 8th Sess., U.N. Doc. A/HRC/8/WG.4/3 (2008).
128. Catarina de Albuquerque, Chairperson of the United Nations Open-ended Working
Group To Consider Options Regarding the Elaboration of an Optional Protocol to the
International Covenant on Economic, Social and Cultural Rights, Statement to the Work-
ing Group's Fifth Session (31 Mar. 2008) (on file with author).

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be able to agree - or at least not to object - to the transmis

the draft Optional Protocol to the Human Rights Council
Article 1, as contained in the draft, was the first provisi
the WG agreed, adopting it on the morning of 31 March
there were only a few, but crucial, articles pending - th
consensus on all others. Therefore, the chairperson announc
tions that she would prepare a compromise package that
ted to the delegations in the afternoon of that same day
proposal was submitted, and the chairperson announced
analyze the text the following morning.
On 4 April, the WG resumed its meeting, and the cha
to announce that there was no objection to the transmission
Human Rights Council for its consideration. The report ref
made by the delegations. In the afternoon, delegations had a
final statements. The WG had thus completed its mandate. T
protocol, as contained as an annex to the report of the W
consecrates a system of communications by or on behal
groups of individuals for cases of violations of the rights co
II and III of the Covenant.130 As we mentioned before,
initial draft contained an article foreseeing collective c
well as the possibility for amicus briefs. However, no suppo
room for the possibility of collective communications (n
the powers to be given to NGOs in that context) and bec
for amicus briefs was preserved elsewhere (more concret
of Article 8§1, which does not restrict the information to t
the parties"), the provision was deleted as a whole.
It sets, beyond the "traditional" admissibility criteria
that requires that any communication be "submitted wit
the exhaustion of domestic remedies."131 The same Article
the inadmissibility of a communication when "the same
been examined by the Committee or has been or is bein
another procedure of international investigation or settlem
Article 4, dealing with communications not revealing
tage, is a novel provision and enables the Committee to "
a communication where it does not reveal that the author h
disadvantage, unless the Committee considers that the comm
a serious issue of general importance."133 The WG inclu
with the aim of dealing with workload issues. The WG w
129. Id
130. Fifth Session, supra note 114, Annex I, art. 2.
131. Id Annex I, art. 3(2)(a).
132. Id. Annex I, art. 3(2)(c).
133. Id Annex I, art. 4.

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the Committee might need authority to manage its w

to enable it to focus its resources and time on the most
on those of public importance. Therefore, this provision
to be used, or at least surely not in the early years of th
Article 5 gives the Committee the ability to request
interim measures.134 Article 7, another innovative prov
human rights system, mentions expressly the possibil
making "available its good offices to the parties conce
reaching a friendly settlement of the matter on the bas
the obligations set forth in the Covenant/'135
Article 8, on the "examination of communications,
provides in its paragraph 1 that the Committee "shall
tions received ... in the light of all documentation sub
provision contains unique language in that the WG elimin
"submitted by the parties" (which was contained in an ea
ensuring that the Committee on Economic, Social and
have access to more third party submissions than any ot
procedure allows for. The final language agreed upo
the suggestion put forward in 1997 by the Committe
and Cultural Rights.
Furthermore, paragraph 3 of the same provision also
mittee "may consult, as appropriate, relevant documenta
other United Nations bodies, specialized agencies, fun
mechanisms, and other international organizations, inclu
human rights systems."137 This provision is aimed at en
mittee, when appropriate, seeks information from ot
regional systems that have updated information on a
might be under analysis by the Committee.
Paragraph 4 of Article 8 determines that the "Commit
the reasonableness of the steps taken by the State Par
Part II of the Covenant" and also that the state party
of possible policy measures for the implementation of
in the Covenant."138 Very significantly, the WG reje
introduced by a group of states aimed at ensuring that t
margin of discretion" or a "wide margin of appreciation.
WG refused a proposal aimed at stating that the Com
would limit itself to assessing whether the measures
134. Id. Annex I, art. 5.

136. Id. Annex I, art. 8 1 1.
137. Id. Annex I, art. 8 1 3.
138. Id. Annex I, art. 8 14.
139. Text of the proposals on file with the author.

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"unreasonable/'140 In an informal lunch meeting with th

during the last week of negotiations, the chairperson h
explain that several states (namely European Union memb
and Latin American states) had received clear instructi
"compromise proposal" by the chair that would contain
During that meeting, the chairperson asked that group
their intention was not, after all, to simply acknowledg
be different legitimate policies from which states can ch
the rights contained in the Covenant. All delegates nodd
The language that was finally agreed upon was deliber
the Crootboom Case of South Africa141 and hence recognize
be a range of ways to achieve compliance. The text does,
ognize that it is the Committee's role to assess whether r
have been adopted and whether they contribute to the
Covenant's rights - or rather, fail to do so. This language th
the necessary reassurance that the Committee will not
suggesting that in cases where resource allocation or soci
are involved, it will simply defer to the decisions of the sta
the current language obliges the Committee to ensure effec
the cases that are often the most pressing issues of econ
cultural rights violations.
Article 10 foresees the possibility of inter-state commun
are subject, however, to an "opt-in" clause.142 Article
inquiry procedure that is equally subject to another "opt
ticle 13 obliges states parties to adopt all appropriate m
that "individuals under its jurisdiction are not subjecte
ill-treatment or intimidation as a consequence of commu
Committee pursuant to the present Protocol."144 Article 14
cooperation and assistance, imports some notions from Arti
the ICESCR but also determines that a trust fund shall b
a view to providing expert and technical assistance to St
the enhanced implementation of the rights contained in
contributing to building national capacities in the area o
and cultural rights in the context of the present Protocol."1
Article 18, the protocol will enter into force "three months
the deposit ... of the tenth instrument of ratification or
140. Id
141. See Republic of South Africa v. Grootboom, 2001 (1) SA 46 (CC) (S. Afr.).
142. Finn Session, supra note 114, Annex I, art. 10.

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provisions on the Committee's rules of procedure, o

the transfer of competences were deleted.
3. The Eighth Session of the Human Rights Counc

2008)
Before the text of the draft optional protocol could be adopted by the Hu-
man Rights Council, a change had to be introduced into Article 2. In fact,
on the last day of WG's discussions, two delegations, Algeria and Pakistan,147
expressed serious objections to the exclusion of Part I of the ICESCR from the
scope of the communications under the protocol. These delegations asked
the chairperson to carry on negotiations with all interested delegations in
hopes of finding a consensual language for Article 2 that would not leave
any part of the Covenant out.148
After several informal negotiations with all interested delegations, the
WG agreed on a revised version of Article 2, which now states as follows:
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. 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.149
The draft optional protocol was submitted to the eighth session of the Hu-
man Rights Council for its consideration and was adopted without a vote
on 18 June.
III. EPILOGUE
The WG subsequently submitted the draft optional protocol to the Genera

Assembly's Third Committee, which adopted the text without a vote on 18
November 2008. 15° Some weeks later on 10 December 2008- the day the
147. Id 11 214, 245.

148. Article 1 of the ICESCR (which corresponds to Part I of the text) that foresees the right
to self-determination was in danger of beine left out.
1 49. Optional Protocol to the International Covenant on Economic, Social and Cultural Rights,
adopted 10 Dec. 2008, U.N. GAOR, 63d Sess., U.N. Doc. A/63/435 (2008).
1 50. Optional Protocol to the International Covenant on Economic, Social and Cultural Rights,
U.N. GAOR, Hum. Rts. Council, 63d Sess., U.N. Doc. A/C.3/63/L.47 (2008) [hereinafter
Draft Protocol 2008]. For the news of the Protocol's adoption by the General Assembly's
Third Committee, see Press Release, UN General Assembly, Third Committee Recom-
mends General Assembly Adoption of Optional Protocol to International Convention on
Economic, Social and Cultural Rights: Other Texts Address Torture, Self-Determination,
Practices Fuelling Racism; Also Rejects by Recorded Cote Seven Amendments to Death
Penalty Moratorium Draft, U.N. Doc. GA/SHC/3938 (18 Nov. 2008).

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United Nations and the world commemorated the sixtieth an

Universal Declaration of Human Rights - the General Ass
adopted the Optional Protocol to the International Coven
Social and Cultural Rights without a vote. The text of th
recommends that "the Optional Protocol be opened for signat
ceremony to be held in 2009, and requests the Secretary-
United Nations High Commissioner for Human Rights to p
sary assistance/'151 On 24 September 2009, the Optional Prot
opened for signature at the 2009 Treaty Event held at the
in New York. The first state to sign the new treaty was Port
eight states followed.152 At the signing event, the High C
Human Rights, Navanethem Pillay, mentioned that once
Protocol "enters into force, the ensuing jurisprudence that it
can offer guidance, with the benefit of concrete exampl
interpretation of economic, social and cultural rights. It will
scope of application of these rights by national tribunals
bodies." She added that "[w]ith the adoption of the Optio
United Nations has now been able to come full circle on the normative
architecture envisaged by the Universal Declaration."153
Clearly, the Optional Protocol to the ICESCR will not solve all the prob-
lems of the world, but it can surely contribute to improving the enjoyment of
socioeconomic rights at the domestic level. In addition, the Optional Protocol
will definitely recognize the right of victims of violations of social rights to
be heard and give renewed hope to the millions of human beings who still
do not enjoy the rights recognized in the Covenant. As the chairperson of
the WG said in her closing statement on 4 April 2008,
We finished a first step - I would say the formal one - to re-establish the balance
between civil and political rights and economic, social and cultural rights. Now,
beyond the formal approval of the text, as well as its ratification by the UN
Members States, it is up to the Committee on Economic, Social and Cultural
Rights to continue the work and transform the promise which this text represents
into reality. But above all, this text belongs now to all those who suffer from
151. Draft Protocol 2008, supra note 1 50, 1 2.

152. As of 18 November 2009, twenty-nine states had signed the Optional Protocol. These
states are Argentina, Armenia, Azerbaijan, Belgium, Chile, Congo, Ecuador, El Salvador,
Finland, Gabon, Ghana, Guatemala, Guinea-Bissau, Italy, Luxembourg, Madagascar,
Mali, Montenegro, Netherlands, Raraguay, Portugal, Senegal, Slovakia, Slovenia, Solomon
Islands, Spain, Timor-Leste, Togo, Ukraine, and Uruguay.
153. Navanethem Pillay, High Commissioner for Human Rights, Statement at the Signing
Ceremony for the Optional Protocol to the International Covenant on Economic, Social
and Cultural Rights (24 Sept. 2009), available at http://www.unhchr.ch/huricane/huricane.
nsf/view01/5EE2E0E5168886FCC125763B00589EF3?opendocument.

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violations of economic, social and cultural rights and who

the UN as their only hope to see their rights and their d
The dream and expectation of all those who fought for

is that it has the potential to bring, as Eleanor Roos
rights to "small places, close to home - so close and s
not be seen on any maps of the world/'155
154. Catarina de Albuquerque, Chairperson of the United Nat

Group To Consider Options Regarding the Elaboration of an
International Covenant on Economic, Social and Cultural Righ
the Second Session of the Working Group's Fifth Session (4 A
155. Eleanor Roosevelt, Address at the Presentation of In Your Han
Action for the Tenth Anniversary of the Universal Declaration o
1958).

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Chronicle of an Announced Birth: The Coming into Life of the Optional Protocol to the

International Covenant on Economic, Social and Cultural Rights—The Missing Piece of

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Chronicle of an Announced Birth:

At the 2009 Treaty Event held at UN Headquarters in New York, twenty-

Catarina de Albuquerque Chairperson-Rapporteur of the UN Open-Ended Working Group

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The Vienna Declaration and Program of Action (VDPA) adopted at

1 . Vienna Declaration and Programme of Action, adoptedlS June 1 993, U.N. GA

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sions of horror and outrage and would lead to concer

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II. False Twins

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7 International Covenant on Civil and Political Rights, adopted 16 D

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is now composed of independent experts and has the

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After adoption of the two Covenants and of the two

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a system for the examination of individual cases offers the

Additionally, in a statement made in June 1993 durin

14. Id. 1211.

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Three years later, in 1996, the Social Rights Com

2 1 . Draft Optional Protocol to the International Covenant on E

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governments of Croatia,24 Cyprus,25 Czech Republic,26 Ecuado

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Norway,35 Portugal,36 Sweden,37 and Syrian Arab R

protocol to the International Covenant on Economic, Social an

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the workshop, participants made different proposals on the m

40. Report on the Workshop on the Justiciability of Economic, Social

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with questions regarding the feasibility of an option

43 . Optional Protocol to the International Covenant on Economic,

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Also in 2002, the CHR established an open-ended wor

the adoption of a draft optional protocol to the International C

46. Question of the Realization in All Countries of the Economic, Socia

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And ¡n the report's final paragraph, the IE recomme

Commission on Human Rights [to] adopt a resolution

On 22 April 2003, the CHR adopted resolution 2

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B. The Commission on Human Rights' Working Group (W

/. The First Session of the WG (23 February to 5 March 2004)

In the first session, human rights experts participated in several organized

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addressed the potential cost implications of the im

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rights was clearly pictured in official UN documents (th

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2. The Second Session of the WG (10 to 20 January

During the WG's second session, the High Commissioner