Chapter 2 | Page 84
The Optional Protocol to the ICESCR provides for three new procedures to
advance the protection and promotion of ESC rights: an individual complaints
procedure; an inter-State complaints procedure; and an inquiry procedure that
can be initiated by the Committee based on reliable information about grave
or systematic violations of ESC rights.197 Violation of any of the rights
recognised in the Covenant is admissible under the Optional Protocol, which
may be presented only by ‘individuals or groups of individuals or in the name
of individuals or groups of individuals’.198 These mechanisms are expected to
provide a stronger system of protection for individuals and an avenue for
States to address their grievances against other States in the area of the
implementation of ESC rights.199 While these mechanisms are just beginning
to be used, it is expected that the Committee will soon begin to build a body of
jurisprudence relating to the Covenant.
In summary, States parties to the Covenant are obliged to take steps to the
maximum available resources to progressively realise the substantive rights
recognised in the Covenant. This obligation must be carried out without
discrimination and must ensure that the minimum core contents of the rights
are safeguarded at all times, regardless of resource constraints. States are
also required to report on their programmes aimed at the realisation of these
rights. As stipulated in Article 2(1), the undertaking to take steps is linked to
the ‘maximum available resources’. This phraseology has been identified as a
key component in defining the nature of the general obligations on the State
and can have significant impact on the approach a State takes in implementing
these obligations.
Rights <https://treaties.un.org/pages /viewdetails.aspx?src=ind&mtdsg_no=iv-3a&chapter=4&lang=en>.
197
Optional Protocol to the International Covenant on Economic, Social and Cultural Rights,
opened for signature 5 March 2009, General Assembly Res No A/RES/63/117 (entered
into force 5 May 2013).
198
199
Ibid., rule 4.
The experience of inter-state complaints have so far not been very positive with other
Optional Protocols. The applicability and usefulness of this mechanism under OP-ICESCR
remains to be seen.
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