April 1, 2010
The Optional Protocol to the ICESCR: A Victory for Women
By Kasari Govender, Legal Director, West Coast LEAF
Considered: Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
On December 10, 2008 the UN General Assembly approved an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR), and on September 24, 2009, it opened for signature. The OP-ICESCR is a milestone for enforcing the rights of those living in poverty around the world; since the World Health Organization has found that women make up almost 70% of the 1.3 billion people living in extreme poverty globally (World Health Organization (WHO), The Right to Water (France: WHO, 2003) at 25), economic rights protections such as the new Optional Protocol have particular relevance for women.
What is the OP-ICESCR?
The International Covenant on Economic, Social and Cultural Rights (ICESCR) is an important cornerstone of the triumvirate International Bill of Rights, and yet throughout its history debates have raged about whether the rights contained therein are enforceable.
Until now: in the OP-ICESCR, the General Assembly has approved of an enforceability mechanism for economic, social and cultural rights. The Optional Protocol provides for a complaint procedure by which the rights in the ICESCR can be enforced and infringements remedied. This means that individuals are able to bring complaints to the committee that their economic, social or cultural rights have been infringed by a state party. Most other human rights treaties have a complaint mechanism attached, so the OP-ICESCR is a latecomer, after the Optional Protocols for the International Covenant on Civil and Political Rights, the Convention on the Elimination of all forms of Discrimination Against Women and the Convention Against Torture, among others.
Why is it important to women?
The protection of civil and political rights (CP rights) has faced much less opposition on both the international stage and in the domestic sphere than the protection of economic, social and cultural rights (ESC rights). There are two main forms of opposition to the enforcement of ESC rights: firstly, some would argue that while CP rights are consistent with a capitalist economy and political structure, ESC rights entail a shift towards a socialist system; and secondly, that ESC rights are not justiciable for a number of reasons including that they are too imprecise and immeasurable to be enforced and that judicial enforcement would require an impermissible encroachment on parliamentary supremacy and the division of powers.
All of these concerns, or at least the use of these concerns to distinguish between ESC and CP rights, are largely countered by the following argument: in fact, both sets of rights include three duties: avoid depriving someone of a necessity, protect them from deprivation and aid them when deprived (in other words, respect, protect and fulfill) (Henry Shue as cited by David Beetham, Democracy and Human Rights (Malden: Blackwell Publishers Inc., 1999) at 126). The true distinction is not between different categories of rights, but between different types of duties necessary to further their protection. It is impossible for any right, no matter how ‘negative’ it may seem, to be fully guaranteed unless all three types of duties are fulfilled. In fact, then, the different categories of rights are not accurately aligned to a particular economy, nor does one require more judicial activism than another; rather, the fulfillment of all rights requires considerable court enforced state involvement, control and expenditure.
The privileging of civil and political rights over economic, social and cultural rights (both globally and within Canada) has impacted women more than men. The division between CP rights on the one hand, and ESC rights on the other, follows the gendered lines of the public private divide. The rights to housing, food, water and cultural identity are all more closely identified with woman’s traditional role within the family, home and community. The rights to freedom from torture, political participation and a fair trial are all more closely associated with the male role in the public sphere.
The privileging of civil and political rights over the enforcement of economic, social and cultural rights is also reinforced by the gender divide; because civil and political rights are in the public sphere and impact those in power (disproportionately men) more directly, it is these rights that the international community has acted more quickly and decisively on.
Clearly, the rights to free speech and protection from a police state are vital to any rights-respecting democracy. This critique is meant to highlight the importance of economic, social and cultural rights in addition to these civil and political rights, without diminishing their counterparts. It’s meant to highlight the interconnectedness of these rights, particularly for women; without adequate health care for their families, or close proximity to an adequate water source, women will not be freed enough from their traditional responsibilities in the family sphere to run for office or engage in the public life of their state. Without economic equality, women are rendered second class citizens.
The particular significance of ESC rights to women’s human dignity means that the introduction of the OP-ICESCR is a victory for women and women’s advocates around the world.
What does this mean in Canada?
While critics have their doubts that this protocol will be ratified by the present government of Canada, if it was ratified it could have significant results. Canadian courts have steadfastly refused to recognize ESC rights content in the Charter guarantees to life, security of the person or equality, so the OP-ICESCR could provide a unique opportunity to adjudicate these rights infringements in Canada.
However, even if Canada doesn’t sign on to the OP-ICESCR, as the international community moves past the debate over the justiciability of ESC rights, this may have ripple effects on domestic courts. Whether this impact is felt in Canadian jurisprudence depends at least in part of the awareness of human rights and constitutional lawyers, and their willingness to bring the jurisprudence of the Committee on Economic, Social and Cultural rights to bear on their arguments before Canadian courts.
What’s next?
Arguably, the passage of the OP-ICESCR marks a transition in the international debate on ESC rights from whether such rights are justiciable to how they should be adjudicated.
It will be interesting to see whether the ICESCR Committee wholly imports its general comments on minimum core content into its jurisprudence on complaints under the Optional Protocol – for example, in its General Comment 15, the Committee notes that the minimum core content of the right to water includes the right not to be deprived of the minimum essential level of water, defined as the amount that is sufficient and safe to prevent disease, and that deprivation of this right cannot be justified by state parties under any circumstances (CESCR, General Comment 15, paras.40, 56 and 37(a)). If the Committee receives a complaint about the right to water that the state is seeking to defend by showing that it does not have the available resources to meet the complainant’s needs, will the Committee stick to the framework it described in General Comment 15, or will it be forced to re-consider this hard-line approach? And if the Committee reconsiders the enforceability of the minimum core content where there are concerns about a country’s financial capabilities, can it still develop into a relevant and useful body on the international stage?
While we are still basking in the achievement that is the passage of the Optional Protocol by the General Assembly, critics are starting to look forward and wonder: will the new Optional Protocol achieve the dream of enforcing economic, social and cultural rights?
