The Optional Protocol provides the basis for States and not just individuals to initiate legal action before the CESCR to ensure compliance with the Covenant. This covers, first, cases of a State’s direct interest in ESC rights, such as violations committed against their citizens or residents, in circumstances where those individuals may be blocked in launching litigation for legal, political or economic reasons. Indeed, ‘a State may be in a better position to represent the interests of those individuals whose rights were breached by the action or omission of another State Party to the ICESCR’.132 Second, it permits litigation by States of cases that draw solely on broader collective or global interests in seeking to press another State to respect, protect, or fulfil the Covenant rights.
The inter-State complaints procedure thus provides a potentially effective tool in the enforcement of obligations under the Covenant and an additional means to develop concrete legal jurisprudence. The procedure is notable for its non-inclusion of a jurisdiction clause which opens up considerable space for extra-territorial litigation, given the global orientation of the ICESCR.
Moreover, while the decisions of the Committee are not binding, the legalisation of an inter-State dispute may provide a means for its effective realisation. Prebensen notes the role of the European Court of Human Rights in inter-State disputes and its potential to alleviate rather than exacerbate political differences between States. For instance, in the case of Ireland v. UK, final adjudication by a Court provided a neutral view which was effective in reaching a solution.133 Moreover, in the ICJ case of Belgium v. Senegal, compliance has been rapid and significant. Four days
131 OECD Guidelines for Multinational Enterprises, Revision of 25 May 2011, Part C: 1-3. For an example of such a decision, see Shakti & Others. v. Posco (South Korea), ABP/
APG (Netherlands) and Norwegian Bank Investment Management (Norway) Decision, 27 May 2013 (OECD National Contact Point – Norway). However, the reform of the 1503 procedure by the UN Human Rights Council did not address confidentiality: see Human Rights Council Resolution 5/1, para. 104 (‘the reports of the Working Group on Situations referred to the Council shall be examined in a confidential manner, unless the Council decides otherwise’).
132 Courtis and Sepúlveda, ‘Are Extra-Territorial Obligations Reviewable under the Optional Protocol?’ (n. 106 above), p. 59.
133 Prebensen, ‘Inter-State Complaints under Treaty Provisions’ (n. 17 above), 460. He argues also that a final and legally binding judgment by the Court not only carries more weight but leave less room for discretion at the implementation stage.
after the judgment, Senegal and the African Union (AU) agreed to establish a special court in the Senegalese justice system with AU-appointed judges,134 and within a year prosecutors and experts had visited mass graves and taken statements from 797 direct and indirect victims and fourteen key witnesses.135
Thus, the use of the inter-State procedure can have the effect of removing a matter from the political arena by tasking a third non-political party with the responsibility for a solution. While the decisions of the Committee are not binding (unlike the European Court’s), Leckie’s analysis of inter-State litigation before quasi-judicial procedures is cautiously optimistic. It reveals a significant number of cases in which States reformed legislation during the course of litigation or reached a friendly settlement.136 However, there is a major debate on the extent of compliance with States with human rights judgments of the ICJ, which are binding.137
Of course, there are a number of clear limitations to the inter-State procedure. These include the requirement that both disputing States have made an Article 10 declaration; the low numbers of declarations; the partial confidentiality of the procedure; and the challenges in pushing States to file complaints. As Courtis and Sepúlveda note with respect to the latter, ‘[v]ictims are not in a position to require the filing of a communication, which is left to the discretion of the State … even if a communication is submitted by the State, victims cannot be sure that the case is framed in a way that represents their interests or their voice properly.’138 If the inter-State procedure is to come to life, civil society organisations and a number of States will have to work to overcome these significant limitations. The absence of claims within the international human rights treaty system makes ones doubtful as to the likely use of the procedure but the more frequent occurrence of inter-State human rights litigation in other international law forums reveals its underlying potential.
134 Human Rights Watch, http://www.hrw.org/news/2012/03/09/chronology-habr-case.
135 Ibid.
136 Leckie, ‘The Inter-State Complaint Procedure in Interntional Human Rights Law (n.
10 above).
137 Cf. T. Ginsburg and R. McAdams, ‘Adjudicating in Anarchy: An Expresive Theory of International Dispute Resolution’, William and Mary Law Review, Vol. 45 (2004), pp.
1229-1330 and A. Llamzon, ‘Jurisdiction and Compliance in Recent Decisions of the International Court of Justice’, European Journal of International Law, 18 (2008), pp.
815-852.
138 Courtis and Sepúlveda, ‘Are Extra-Territorial Obligations Reviewable under the Optional Protocol?’ (n. 106 above), p. 59, n. 29.
173
Bruce Porter*
Article 8(4): When examining communications under the present Protocol, the Committee shall consider the reasonableness of the steps taken by the State Party in accordance with part II of the Covenant. In doing so, the Committee shall bear in mind that the State Party may adopt a range of possible policy measures for the implementation of the rights set forth in the Covenant.
1 Introduction
Article 8(4) is arguably the heart and pulse of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR).1 It is a unique provision that introduces a substantive criterion of ‘reasonableness’, not contained in the International Covenant on Economic, Social and Cultural Rights (ICESCR), and which was developed in response to the central problematic and historic debates regarding the justiciability of economic, social, and cultural (ESC) rights claims. It provides direction as to how the Committee on Economic, Social and Cultural Rights (CESCR or Committee) should adjudicate claims of violations resulting from States’ failures to adopt reasonable measures to realise Covenant rights, and addresses the critical relationship between individual communications and broader issues of socio-economic policy.
At the same time as responding constructively to traditional concerns about the adjudication of ESC rights claims, Article 8(4) also remains true to the broader purpose of the OP-ICESCR, which is to provide access to justice and ensure fair and competent adjudication of claims engaging all violations of ESC rights. The result of years of debate, Article 8(4) reflects a hard-won consensus. It affirms that access to justice, in cases where ESC rights violations are linked to failures by States to adopt positive measures,
1 Director, Social Rights Advocacy Centre.
1 UN General Assembly, Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (63rd session, 2008), U.N. Doc A/RES/63/117 (2008).