Catarina de Albuquerque: Human Rights Quarterly, Volume 32, Number 1, February 2010, Pp. 144-178 (Article)

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
Human Rights Quarterly, Volume 32, Number 1, February 2010,

pp. 144-178 (Article)
Published by The Johns Hopkins University Press

DOI: 10.1353/hrq.0.0137
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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) 144–178 © 2010 by The Johns Hopkins University Press
2010 Optional Protocol to the ICESCR 145
I. Introduction
The Vienna Declaration and Program of Action (VDPA) adopted at the 1993
World Conference for Human Rights expressly mentions that “[a]ll human
rights are universal, indivisible and interdependent and interrelated” and must
be treated “in a fair and equal manner, on the same footing, and with the
same emphasis.”1 Despite this, at the national, regional, and universal levels,
economic, social, and cultural rights have been treated as poor relatives of
human rights and perceived with caution, skepticism, or triviality.
Currently existing at the international level are different possibilities for
filing communications in cases of torture, arbitrary detention, racial discrimi-
nation, discrimination against women, and violations of freedom of speech
or religion.2 However, in those cases where the victim “simply” suffers from
chronic malnutrition, seriously inadequate health care, total lack of educational
opportunities, or a combination of all these phenomena, that victim does
not have the right to petition at the international level. As stated by the then
chairperson of the Committee on Economic, Social and Cultural Rights during
the Vienna Conference in 1993, the sad reality is that we continue to
tolerate all too often breaches of economic, social and cultural rights which,
if they occurred in relation to civil and political rights, would provoke expres-
1. Vienna Declaration and Programme of Action, adopted 25 June 1993, U.N. GAOR, 48th
Sess., 22d plen. mtg., ¶ 5, U.N. Doc. A/CONF.157/23 (1993), reprinted in 32 I.L.M.
1661 (1993).
2. See generally Optional Protocol to the International Covenant on Civil and Political
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 21 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/45/158 (1990) (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 Optional
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).
146 HUMAN RIGHTS QUARTERLY Vol. 32
sions of horror and outrage and would lead to concerted calls for immediate
remedial action. In effect, despite the rhetoric, violations of civil and political
rights continue to be treated as though they were far more serious, and more
patently intolerable, than massive and direct denials of economic, social and
cultural rights.3
This statement is almost twenty years old, but unfortunately, its content
remains pertinent today.
In fact, the disparities among individuals’ enjoyment of economic, social,
and cultural rights are enormous. The High Commissioner of Human Rights
referred to these disparities in her Plan of Action:
The gap between rich and poor countries, and the global inequities it points
to, seriously challenge our commitment to the universality of human rights. In
human rights terms, poverty is both a symptom and a cause: continuing severe
deprivation is a sign that those affected are living in a state of indignity, and thus
denial of rights, and the poor and marginalized are deprived, above all, of the
capacity to claim their rights. A marked characteristic of virtually all communi-
ties living in extreme poverty is that they do not have access, on equal terms,
to the institutions and services of Government that give effect to human rights.
This inequality of access, in particular to justice, is often linked to discrimina-
tion on other grounds.4
Later in her Plan of Action, the High Commissioner recognizes that

[economic, social and cultural] rights still enjoy a lesser status in law in most
countries. Some believe that the principle of progressive realization of these rights
creates special difficulties regarding accountability. . . . Much work remains to
be done, however, including in convincing often skeptical publics and Govern-
ments that human rights truly are interdependent and indivisible.5
The realization of socioeconomic rights is still only a mirage for millions—

or even billions—of persons.6 In order to better implement economic, social,
and cultural rights in the world, they must first be acknowledged as rights and
treated on the same footing and with equal emphasis as civil and political
3. Status of Preparation of Publications, Studies and Documents for the World Conference,
Contribution Submitted by the Committee on Economic, Social and Cultural Rights, World
Conf. on Hum. Rts., Prep. Comm., 4th Sess., Annex I, ¶ 5, U.N. Doc. A/CONF.157/
PC/62/Add.5 (1993) [hereinafter Status of Preparation].
4. See In Larger Freedom: Towards Development, Security, and Human Rights For All,
Report of the Secretary-General, Kofi Annan, U.N. GAOR, 59th Sess., Agenda Items 45
& 55, at 8, U.N. Doc. A/59/2005/Add.3 (2005).
5. See id. at 19–20.
6. There are presently approximately 2.5 billion people without access to basic sanitation,
over one billion people practice daily open defecation, almost one billion people do not
have access to safe drinking water, 1.4 billion people live on less than $1.25 a day, and
72 million children don’t have access to education. For these and other figures on the
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.org/
millenniumgoals/pdf/MDG_Report_2009_ENG.pdf.
rights. However, the international community still has different tools to ad-
dress these inequalities of recognition, treatment, and enforcement. The next
section will summarize some of the crucial steps taken by the United Nations
to accomplish the goal of adopting a complaints mechanism at the international
level for cases of violations of economic, social, and cultural rights.
II. False Twins
In 1966, the adoption of the International Covenant on Civil and Political

Rights (ICCPR) and the International Covenant on Economic, Social and
Cultural Rights (ICESCR or Social Rights Covenant) formally separated the
international protection of human rights into two distinct categories.7 Although
the two Covenants were adopted on the same day through a sole General
Assembly resolution, and even though some of their provisions are similar,
there exist fundamental differences between the two instruments.
First, the Social Rights Covenant did not create an independent body for
the follow-up and monitoring of the treaty’s enforcement at the national level,
whereas the ICCPR foresaw the creation of the Human Rights Committee—a
body composed of eighteen independent experts in charge of monitoring the
way states parties fulfill their obligations under the ICCPR. This Committee
fulfills its functions through the examination of periodic reports submitted
by states parties on the measures the states have adopted to give effect to
the rights recognized in the ICCPR and on the progress achieved in the
enjoyment of these rights.8
Instead, drafters of the Social Rights Covenant chose to give the UN
Economic and Social Council (ECOSOC), a subsidiary body of the General
Assembly with a political nature and where UN member states are repre-
sented, the responsibility to receive and examine periodic reports submitted
by states parties.9 However, due to the inefficacity of the monitoring and
follow-up procedures by ECOSOC, the Committee on Economic, Social
and Cultural Rights (CESCR or Social Rights Committee), as we know it
today, was created in 1985 through an ECOSOC resolution.10 The CESCR
7. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res.
2200 (XXI), U.N. GAOR, 21st Sess., U.N. Doc. A/6316 (1966), 999 U.N.T.S. 3 (entered
into force 23 Mar. 1976) [hereinafter ICCPR]; International Covenant on Economic,
Social and Cultural Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR,
21st Sess., U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 (entered into force 3 Jan. 1976)
[hereinafter ICESCR]. The ICESCR now has 160 states parties (the Bahamas being the
state that most recently became party to the Covenant on 23 December 2008).
8. ICCPR, supra note 7, art. 28.
9. ICESCR, supra note 7, arts. 19–21.
10. See Review of the Composition, Organization and Administrative Arrangements of the
Sessional Working Group 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/1985/85 (1985).
is now composed of independent experts and has the function of monitor-

ing and examining states parties’ reports, like any other treaty monitoring
body within the UN human rights system. The CESCR met for the first time
in 1987 and has, since then, developed important procedures with regard
to the examination of states parties’ reports and in the adoption of General
Comments, which correspond to the Committee’s interpretation of the provi-
sions of the Covenant.11
Secondly, and contrary to what happened in the case of the ICCPR, the
ICESCR had no mechanism for victims to communicate alleged violations
of social rights. In fact, the Optional Protocol to the ICCPR “recognizes the
competence of the Committee to receive and consider communications from
individuals subject to its jurisdiction who claim to be victims of a violation
by that State Party of any of the rights set forth in the Covenant.”12 No such
instrument was adopted in relation to the ICESCR even though the Optional
Protocol to the ICCPR and its communication system had generated a wealth
of jurisprudence illuminating the content of treaty provisions. Consequently,
no comparable jurisprudence has been developed at the international level
to clarify the content of the rights in the ICESCR.
A. Crossing the desert
After adoption of the two Covenants and of the two Optional Protocols to
the ICCPR, the world community devoted more attention and effort to the
realization of civil and political rights than to economic, social, and cultural
rights. However, in response, some within the United Nations started a
lengthy process with the goal of re-establishing equality between both sets
of rights, namely through discussions related to the need to ensure that the
ICESCR have a communications mechanism. Discussions influenced by the
positive experiences witnessed by the Human Rights Committee began on
the importance of the examination of specific cases by a treaty monitoring
body.
In 1991, 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 Türk, 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 Türk also recommended
11. Id.
12. OPICCPR, supra note 2, art. 1.
13. The Realization of Economic, Social and Cultural Rights, Final Report Submitted by Mr.
Danilo Türk, Special Rapporteur, U.N. ESCOR, Comm’n on Hum. Rts., Sub-Comm’n
on Prev. of Discrim. & Protect. of Min., 44th Sess., Provisional Agenda Item 8, ¶ 186,
U.N. Doc. E/CN.4/Sub.2/1992/16 (1992).
that the CESCR pursue its work on this issue with a goal to “discuss further
the exigencies of the eventual adoption of such an optional protocol to the
Covenant on Economic, Social and Cultural Rights.”14
That same year, the CESCR prepared an analytical paper entitled “Towards
an optional protocol to the International Covenant on Economic, Social and
Cultural Rights,” which it then submitted to the Preparatory Committee of
the Vienna World Human Rights Conference.15 The Committee explained
therein that
a system for the examination of individual cases offers the only real hope that
the international community will be able to move towards the development of
a significant body of jurisprudence in this field. As the experience of the Human
Rights Committee demonstrates such a development is essential if economic,
social and cultural rights are to be treated as seriously as they deserve to be.16
Additionally, in a statement made in June 1993 during the Vienna World

Human Rights Conference, the Committee remarked that there are strong
reasons to favor the adoption of a complaints mechanism to the ICESCR,
which should be fully optional and allow for the presentation of commu-
nications from individuals or groups who are alleged victims of violations
of Covenant rights.17
On the basis of these and other documents, the World Conference on
Human Rights adopted the VDPA, which reaffirms that all human rights are
universal, indivisible, and interdependent.18 The Declaration also encourages
the Commission on Human Rights (CHR or the Commission) “in cooperation
with the Committee on Economic, Social and Cultural Rights, to continue
the examination of optional protocols to the International Covenant on Eco-
nomic, Social and Cultural Rights.”19 Interestingly, although the VDPA refers to
protocols in the plural, the only proposal submitted to the Conference dealt
uniquely with an optional protocol foreseeing a communications system; it
was the proposal that the Social Rights Committee had submitted.20
14. Id. ¶ 211.

15. Towards an Optional Protocol to the International Covenant on Economic, Social and
Cultural Rights, adopted 11 Dec. 1992, U.N. ESCOR, Comm. on Econ., Soc. & Cult.
Rts., 7th Sess., ¶ 5, U.N. Doc. A/CONF.157/PC/62/Add.5 (1993).
16. Status of Preparation, supra note 3, Annex II, ¶ 93.
17. Id. Annex I, ¶ 18.
18. Vienna Declaration and Programme of Action, supra note 1, ¶ 5.
19. Id. ¶ 75.
20. During the Working Group’s negotiations on the optional protocol, some of the delegations
that were skeptical about the complaints procedure provided for in the Vienna Declara-
tion and Programme of Action (and more concretely the fact that it refers to “protocols”
in the plural) to argue that the optional protocol could have a different objective than
establishing a communications procedure. They suggested that the optional protocol
could, for example, serve to improve the reporting procedure before the Committee,
change the Committee’s methods of work, and strengthen the participation of NGOs in
the Committee’s work.
Three years later, in 1996, the Social Rights Committee finalized its
draft optional protocol, which was submitted to the CHR in 1997. The draft
suggested the creation of a mechanism for the examination of individual
communications or complaints related to cases where states parties have
violated their legal obligations under the Covenant. According to the draft, the
Social Rights Committee should receive and process these communications.21
The majority of the Committee members also expressed a clear preference
for a comprehensive approach that would enable victims to present com-
munications in cases of alleged violations of any of the rights consecrated
in the Covenant.22 The text also contains several rules on the admissibility
conditions for the presentation of a communication but contemplates no
provisions on inquiry procedures or inter-state complaints.23
Between 1998 and 2001, governments and several organizations
submitted comments to the draft. The limited number of governments
submitting any comments to the draft indicates the little importance states
accorded to a future optional protocol. These few governments were the
21. Draft Optional Protocol to the International Covenant on Economic, Social and Cultural
Rights, Note by the Secretary-General, U.N. ESCOR, Comm’n on Hum. Rts., 53d Sess.,
Provisional Agenda Item 14, ¶ 17, U.N.Doc. E/CN.4/1997/105 (1996).
22. Id. ¶ 26.
23. Id.
governments of Croatia,24 Cyprus,25 Czech Republic,26 Ecuador,27 Finland,28

Georgia,29 Germany,30 Lebanon,31 Lithuania,32 Mauritius,33 Mexico,34
24. Croatia shared the view of the Committee on Economic, Social and Cultural Rights that
economic, social, and cultural rights are “fully justiciable;” suggested that the Committee
develops “a clear system of indicators with the purpose of defining the minimum in the
scope of rights that has to be followed irrespectively of the economic prospects of the
country involved;” and made some “minor” drafting suggestions to the Committee’s text.
Draft Optional Protocol to the International Covenant on Economic, Social and Cultural
Rights, Note by the Secretariat, U.N. ESCOR, Comm’n on Hum. Rts., 55th Sess., at 3–4,
U.N. Doc. E/CN.4/1999/112 (1999).
25. Cyprus simply expressed “full support [to] the elaboration of a draft optional protocol.”
Rights, Report of the Secretary-General, U.N. ESCOR, Comm’n on Hum. Rts., 54th Sess.,
at 2, U.N. Doc. E/CN.4/1998/84 (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.4/2001/62 (2000) [hereinafter
Draft Optional Protocol, Report of the High Commissioner for Human Rights II] .
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
Norway,35 Portugal,36 Sweden,37 and Syrian Arab Republic.38 Overall, the

comments by states were, with some few exceptions, rather superficial and
did not go into much detail.
In February 2001, pursuant to paragraph 7(b) and (f) of the Commission
on Human Rights resolution 2000/9,39 the OHCHR and the International
Commission of Jurists organized a workshop on the justiciability of economic,
social, and cultural rights. The workshop was an occasion to debate the
justiciable character of and the possibility to adjudicate this set of rights. At
protocol to the International Covenant on Economic, Social and Cultural Rights. It also
mentioned that the optional protocol “should as far as possible resemble the first Optional
Protocol to the International Covenant on Civil and Political Rights.” Draft Optional
Protocol to the International Covenant on Economic, Social and Cultural Rights, Note
by the Secretariat, Addendum, U.N. ESCOR, Comm’n on Hum. Rts., 55th Sess., at 3,
U.N. Doc. E/CN.4/1999/112/Add.1 (1999).
35. Norway supports the establishment of a complaints procedure on the basis of “the
principle of indivisibility, interdependence and interrelatedness of human rights,” which
would “also be a step forward towards strengthening economic, social and cultural
rights.” However, the government of Norway also expressed concern about the “resource
constraints of the human rights mechanisms and the limited capacity of the Committee
on Economic, Social and Cultural Rights.” Draft Optional Protocol, Report of the High
Commissioner for Human Rights II, supra note 33, at 3–4.
36. The government of Portugal expressed full support to the development and elaboration
of a draft optional protocol. It expressed a preference for the term “violation” of the
Covenant (which is more prudent and restrictive), rather than the language “unsatisfac-
tory application” used under the Additional Protocol to the European Social Charter.
Portugal also supported the Committee’s proposal that the optional protocol applies to
all the rights contained in article 1 to 15 of the Covenant. Id. at 5–7.
37. Sweden expressed doubts regarding the drafting of an optional protocol that were based
on the fact that for “an individual complaint procedure to function in a credible and
efficient way, the State obligations to which such a procedure would refer would have
to be precise,” which is not the case of the rights contained in the ICESCR. Sweden also
pointed to differences in nature between the rights contained in the ICCPR and in the
ICESCR and to its belief that economic, social, and cultural rights are to be “progressively
achieved,” rather than “protected and respected.” The government of Sweden stated that
an individual complaint procedure under the ICESCR would not “serve the purpose of
illuminating problems or deficiencies when it comes to the steps to be taken by a State to
realize a particular right.” Sweden also pointed to a possible overlap of the competences
of the Human Rights Committee and of the Committee on Economic, Social and Cultural
Rights if the proposed optional protocol were to be adopted, given that the two Covenants
have some common rights. This would create a danger that “divergent standards would be
developed when handling an individual complaint. Such divergences could create serious
problems for States which have declared themselves bound by both instruments, and
which would face a situation of having to adapt themselves to international case-law which
is not consistent.” Draft Optional Protocol to the International Covenant on Economic,
Social and Cultural Rights, Note by the Secretariat, Addendum, supra note 34, at 4–6.
38. The Syrian Arab Republic implicitly supported the draft optional protocol and made
several drafting suggestions thereto—many of which are outside the scope of a procedural
complaints procedure and are aimed at creating new substantive rights (for example,
the right to development or the right to social justice). Draft Optional Protocol to the
International Covenant on Economic, Social and Cultural Rights, Report of the Secretary-
General, supra note 25, at 6.
39. Question of the Realization in All Countries of the Economic, Social and Cultural Rights
Contained in the Universal Declaration of Human Rights and in the International Cov-
enant on Economic, Social and Cultural Rights, and Study of Special Problems Which
the Developing Countries Face in Their Efforts to Achieve These Human Rights, adopted
17 Apr. 2000, C.H.R. Res. 2000/9, U.N. ESCOR, Comm’n on Hum. Rts., 56th Sess.,
52d mtg., at 69, ¶¶ 7(b), 7(f), U.N. Doc. E/CN.4/2000/167 (2000).
the workshop, participants made different proposals on the most appropriate

way to move the process forward, namely through a) asking states to provide
more information on the draft optional protocol, b) referring the draft optional
protocol to the Committee on Economic, Social and Cultural Rights or to
the Sub-Commission for the Protection and Promotion of Human Rights for
review, c) establishing an inter-sessional working group of the Commission
on Human Rights, d) moving to the immediate discussion and adoption of
the optional protocol by the Commission, e) appointing an individual expert
to review the text and report back to the Commission, and f) conducting
additional seminars to continue considering the issues.40
Obviously, no conclusions or recommendations came out of the work-
shop, but it was an important forum to debate some legal and political
matters related to a complaints procedure, with the participation not only
of experts and NGOs, but also of states’ representatives. It was, in fact, the
organization of the workshop that created the necessary momentum, ena-
bling the Commission on Human Rights to move the process of creating an
optional protocol further.41
Hence, in 2001 (five years after the Committee had finalized its draft
and ten years after it had started discussions on an optional protocol) the
Commission on Human Rights, at its fifty-seventh session, decided to ap-
point, by resolution 2001/30, an Independent Expert on the Question of
an Optional Protocol to the International Covenant on Economic, Social
and Cultural Rights and requested him to present a report to the fifty-eighth
session of the CHR that would take place in 2002.42 The appointment of
the Independent Expert was a concession made by “pro-optional protocol”
states to “skeptic” states. In fact, the former argued that the best way to deal
40. Report on the Workshop on the Justiciability of Economic, Social and Cultural Rights,
with Particular Reference to the Draft Optional Protocol to the International Covenant
on Economic, Social and Cultural Rights, U.N. ESCOR, Comm’n on Hum. Rts., 57th
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 played a crucial role
in the negotiations of the Optional Protocol to the ICESCR. They organized inter-sessional
meetings and seminars and lobbied governments and Permanent Missions. In addition,
they managed to gain the trust of the states’ delegates; it was not unusual to witness
states’ delegations asking them for advice and to clarify complicated legal issues under
debate. The NGOs created an International NGO Coalition for an Optional Protocol to
the ICESCR that significantly contributed to the positive outcome of the negotiations.
The Coalition is now fighting for the entry into force of the Optional Protocol. For more
information on the Coalition’s work, see International NGO Coalition for an Optional
Protocol to the ICESCR, available at http://www.opicescr-coalition.org/.
the Developing Countries Face in Their Efforts To Achieve These Human Rights, adopted
at 156, U.N. Doc. E/CN.4/2001/167 (2001).
with questions regarding the feasibility of an optional protocol would be

through the creation of an open-ended working group, enabling states to
exchange views on the issue and come up with a decision. On the other
hand, the latter argued that it was still too premature to create a work-
ing group because the issues of the justiciability of economic, social, and
cultural rights and the feasibility of a complaints mechanism still needed
further discussion. The compromise was to appoint an Independent Expert
on the Question of an Optional Protocol to the International Covenant on
Economic, Social and Cultural Rights. This was obviously a purely political
decision given that the “skeptic” states simply wanted to protract the crea-
tion of a working group.
Some months after on 15 August 2001, the Sub-Commission for the
Promotion and Protection of Human Rights adopted a resolution stating
that an open-ended working group of the CHR would be the appropriate
group to examine the question of a legally binding instrument such as a draft
optional protocol to the ICESCR.43 Therefore, the Sub-Commission urged the
CHR to establish the open-ended working group with the aim of continuing
the examination of an optional protocol to the ICESCR.
In 2002, the Independent Expert (IE or the Expert) presented his report to
the CHR in which he suggested that the CHR confirm the states’ engagement
with regards to the possible adoption of an optional protocol to the ICESCR;
that a Working Group not be immediately created because the subject still
created many doubts, uncertainties, and even opposition from several states;
and that his own mandate be renewed.44 Following these recommendations,
the CHR renewed the Expert’s mandate for another year and requested that
he present a further report to the CHR during its following session. The CHR
asked the Expert to study in greater depth questions pertaining to the nature
and scope of states parties’ obligations under the Covenant; the question of
justiciability of economic, social, and cultural rights; as well as the question
of benefits of a communication mechanism.45
43. Optional Protocol to the International Covenant on Economic, Social and Cultural Rights,
adopted 15 August 2001, Sub-Comm’n Res. 2001/6, U.N. ESCOR, Comm’n on Hum.
Rts., Sub-Comm’n on Promotion & Protect. of Hum. Rts., 53d Sess., at 23, U.N. Doc.
E/CN.4/2002/2 (2001).
44. Status of the International Covenants on Human Rights, Report of the 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., 58th Sess., Provisional Agenda Item 10, ¶¶ 53, 55, U.N. Doc. E/CN.4/2002/57
(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).
Also in 2002, the CHR established an open-ended working group to

study options regarding the elaboration of an optional protocol to the ICESCR,
which would start its work in 2003 or 2004.46 In normal circumstances, a
decision by the CHR goes into effect immediately. In this case, the resolu-
tion’s effects were “frozen” for one year. The CHR justified its decision to
formally establish the working group one year later in 2003 instead of right
away because of the IE’s recommendation that it not be immediately created.
However, an important political argument to push for an immediate deci-
sion regarding the creation of the working group resided in the coincidence
that for the only time in the CHR’s existence, the United States was not a
member state. This was not a negligible circumstance, given that the United
States had been skeptical regarding the CHR’s so-called omnibus resolu-
tion on economic, social, and cultural rights; were openly opposed to the
creation of the working group; and were against the creation of an optional
protocol to the International Covenant on Economic, Social and Cultural
Rights. Therefore, the resolution’s main author, Portugal, clearly understood
that if the CHR made the decision to create an open-ended working group
in 2002 even though the group would not be formally created until 2003,
there might be a great chance that the decision could be adopted without
a vote. Even though in legal terms, no difference exists between resolutions
adopted with or without a vote, in political terms, an adoption with or with-
out a vote could have an impact upon the future working group’s legitimacy,
credibility, and atmosphere for negotiations. Therefore, although many of the
states favoring an optional protocol were strongly opposed to a resolution
that postponed the working group’s creation, they also understood that it
was possible to adopt this particular resolution without a vote, convincing
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 Covenant on Eco-
nomic, Social and Cultural Rights would, no doubt, contribute to the efforts
to promote, in accordance with the principles contained in the Charter of the
United Nations, “recognition of the inherent human dignity and of the equal and
inalienable rights of all members of the human family [which] is the foundation
of freedom, justice and peace in the world.”47
enant on Economic, Social and Cultural Rights, and Study of Special Problems which
the Developing Countries Face in their Efforts to Achieve these Human Rights, adopted
49th mtg., at 116 ¶ 9, U.N. Doc. E/CN.4/2002/200 (2002).
47. 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, supra note 45, ¶ 75.
And in the report’s final paragraph, the IE recommended to the

Commission on Human Rights [to] adopt a resolution in which it confirms
the decision contained in its resolution 2002/24, [. . .] and to establish [. . .]
an open-ended working group of the Commission with a view to considering
options regarding the elaboration of an optional protocol to the International
Covenant on Economic, Social and Cultural Rights.48
On 22 April 2003, the CHR adopted resolution 2003/18 in which it

established a working group to consider options regarding the development
of an optional protocol.49 An important issue regarding the working group’s
creation related to the mandate that the CHR assigned to it. One of the
“prices” that the Portuguese authors of the resolution paid in order to have
the text adopted by consensus was that they drafted the working group’s
mandate in such a way that there would be a considerable ambiguity in
relation to its course of action. The working group was directed to “consider
options regarding the elaboration of an optional protocol to the International
Covenant on Economic, Social and Cultural Rights” and clearly not to “draft
Cultural Rights.” The authors aimed this formulation at satisfying both groups
of states within the CHR: those who wanted to draft an optional protocol
would be able to argue that their “option” consisted in starting to negotiate
a text, whereas other states might still be able to defend other courses of ac-
tion, like strengthening the working methods of the Committee on Economic,
Social and Cultural Rights.50 This circumstance would have a decisive impact
on the future activities by the open-ended working group.
48. Id. ¶ 76.

the Developing Countries Face in Their Efforts to Achieve These Human Rights, adopted
55th mtg., ¶ 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.
B. The Commission on Human Rights’ Working Group (WG)—Studying

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.
1. 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
51. 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.
53. Paul Hunt, Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest
Attainable Standard of Physical and Mental Health; Miloon 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, ¶¶ 28, 29, 31, 39.
addressed the potential cost implications of the implementation of the

provisions of the Covenant. The WG debated in more detail the question
of the justiciability of economic, social, and cultural rights. The discussions
focused on the question of whether, and to what extent, economic, social,
and cultural rights are able to be adjudicated under a complaints procedure
to ICESCR, and whether the proposed optional protocol would enhance the
protection of economic, social, and cultural rights.55 A number of delegations
made reference to case law from national and regional courts and argued that
the fact that economic, social, and cultural rights were already adjudicated
by some courts demonstrated that these rights could, in principle, also be
subject to a complaints procedure under ICESCR. Conversely, other delega-
tions argued that a complaints procedure would be inappropriate because
of the particular character of economic, social, and cultural rights. The WG
equally debated “the benefits of an optional protocol to the ICESCR and its
complementarity with other mechanisms.”56
At the end of the first session, the chairperson of the WG prepared draft
recommendations to be submitted to the CHR. Two states (the United States
and the Russian Federation) objected to the proposed text and therefore
blocked the possibility of consensus at the Working Group’s first session. The
United States formal justification for opposing the chairperson’s proposal was
that, in their opinion, “the great majority of the states participating in the
working group did not support the drafting of an optional protocol at this
time,” “the idea of an optional protocol as proposed by the Committee is one
whose time is yet not ripe,” and the delegation was against the possibility
of continuing any discussions on a complaints procedure for violations of
economic, social, and cultural rights.
The United States delegation even suggested to the chairperson that she
“declare this working group a success as it has provided an excellent venue
for ideas and opinions to flow, and has been able to conclude that the lack of
consensus among states parties is of such fundamental nature as to indicate
that there is no realistic prospect of resolving such differences through any
further meetings of the Working Group.” However, the United States also
told the chairperson that, had the report of the Working Group’s first session
contained so-called attributions (the names of the states that participated
in the negotiations as well as an indication of their position regarding each
topic), thus enabling the United States views to be duly reflected in the
final report, the US delegation could have joined consensus. The United
States clearly understood that the working group would continue its labors
and would have been able to go along with that inevitable circumstance as
long as their position of mistrust regarding economic, social, and cultural
55. Id. ¶ 58–66.

56. See id. ¶ 67–74.
rights was clearly pictured in official UN documents (the working group’s

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
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, “[I]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, ¶ 75.
60. Id. ¶ 76.
61. Id. ¶ 76–77.
62. See Question of the Realization in All Countries of the Economic, Social and Cultural
Rights Contained in the Universal Declaration of Human Rights and in the International
2. The Second Session of the WG (10 to 20 January 2005)
During the WG’s second session, the High Commissioner for Human Rights,
Louise Arbour, addressed the group and mentioned that
[a] petition system at the international level can help provide guidance for the
reasonable interpretation of universal norms in the provision of remedies at the
domestic level. . . . [I]t can also serve to establish if there is already the effec-
tive or appropriate implementation of existing laws and policies, rather than to
determine the reasonableness of such laws and policies.63
The Working Group devoted its second session to discussions with treaty
body experts (on how an optional protocol might work in practice), with
special rapporteurs (on how an optional protocol might complement the
work of special procedures), with regional human rights experts (on how
economic, social, and cultural rights have been enforced at the regional
level and the relationship with an optional protocol at the universal level),
with ILO and UNESCO experts (on the complementarity of a complaints
mechanism with existing complaints procedures for economic, social and
cultural rights), and on options for an optional protocol.64 The WG gave equal
Covenant on Economic, Social and Cultural Rights, and Study of Special Problems
Which the Developing Countries Face in Their Efforts to Achieve These Human Rights,
adopted on 19 Apr. 2004, C.H.R. Res. 2004/29, U.N. ESCOR, Comm’n on Hum. Rts.,
60th Sess., at 102, 108 ¶ 14, U.N. Doc. E/CN.4/2004/127 (2004).
63. Louise Arbour, U.N. High Commissioner for Human Rights, Address at the Second
Session to the Open-Ended Working Group Established by the Commission on Human
Rights (14 Jan. 2005), available at http://www.unhchr.ch/huricane/huricane.nsf/view01/
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 Göran 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.
time to discussions pertaining to the draft optional protocol prepared by the

CESCR65 and a Report by the Secretary General containing a comparative
summary of existing communications and inquiry practices.66
The subjects discussed and the questions raised by states at the second
session were not very different from those during the first session, although
the tone and atmosphere of discussions significantly improved and the
number of voices favoring an optional protocol considerably increased.67 Yet,
there were still divisions in the working group concerning the desirability of
an optional protocol, and there were additionally three major contentious
issues splitting the working group. One of them regarded the question of
whether an optional protocol should be of a comprehensive nature (admitting
complaints regarding alleged violations of any of the rights consecrated in
the ICESCR) or rather of an à la carte or limited character. The other issue
was one of international assistance and cooperation, with the African Group
defending an optional protocol that would be divided into at least two parts,
“including one on international assistance and cooperation that would take
into consideration General Assembly resolutions addressing the issue.”68 Fi-
nally, Saudi Arabia argued that the existing Committee on Economic, Social
and Cultural Rights should be granted a treaty body status equivalent to all
other existing Committees before it could receive communications.
Because of the opposition to her proposals at the end of the working
group’s first session, the chairperson wanted to avoid making any sugges-
tions to the working group in case the same type of reaction arose. There-
fore, in the middle of the session’s second week, she informally met with
the representative of Argentina, who was coordinating the Group of Latin
American and Caribbean States (GRULAC) that year, and asked him whether
he could try to persuade his regional group to introduce such a proposal.
The Argentinean diplomat agreed to put forward the proposal on behalf of
GRULAC. Other states with whom the chairperson also informally met also
65. See Second Session, supra note 51, ¶¶ 95–99; see also Draft Optional Protocol to the
International Covenant on Economic, Social and Cultural Rights, Note by the Secretary-
General, supra note 21, at 1–2.
66. See Second Session, supra note 51, ¶¶ 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, ¶ 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. ¶ 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).
gave assurances that they would be able to support the proposal. However,
the chairperson had absolutely no assurances that the “skeptic” states would
not oppose the proposal. If that had happened, she would have possibly
been lacking the necessary political legitimacy to prepare such a document.
Intriguingly, and even though they were present in the room, none of the
“skeptic” states opposed the Argentinean proposal. Rather, their strategy
focused on establishing a very exhaustive list of issues that the document
would have to examine, trying to make the chairperson’s task a “mission
impossible.” Their strategy also raised the issue of the chairperson’s alleged
lack of impartiality, asking her to “invite to the next working group experts
known to have other opinions.”69
Therefore, at the end of the second session of the WG, Argentina, on
behalf of GRULAC, asked the chairperson to prepare an analytical paper
containing elements for an optional protocol to the ICESCR “in order to
facilitate a more focused discussion at the third session of the working
group.”70 Delegations requested that the paper present a nonjudgmental
analysis of all the various options for an optional protocol, including the
following 14 elements:
(a) The scope of rights subject to an optional protocol—whether comprehensive
or “à la carte”—and the possibility of opting in or out of the procedure in relation
to specific rights or provisions in the Covenant; (b) The criteria for admissibility of
complaints, including avoidance of duplication, and exhaustion of domestic and
regional remedies; (c) The standing of individuals or groups under an optional
protocol; (d) The permissibility of reservations to the optional protocol; (e) The
attribution to the CESCR of a mediation role for the friendly settlement of disputes;
(f) The authority to order interim measures; (g) The nature of economic, social and
cultural rights, particularly in view of the risk of interfering in domestic political
discussions about resource allocation; (h) Inquiry procedures; (i) International
cooperation and assistance; (j) Cost implications of an optional protocol with a
complaints mechanism; (k) The inclusion of an inter-State complaints mechanism;
(l) The relationship between an optional protocol and existing mechanisms; (m)
An analysis and assessment of the impact of an optional protocol on improving
implementation of economic, social and cultural rights at the national level; (n)
The option of having no optional protocol.71
The chairperson submitted the document, called “Elements for an optional

protocol to the ICESCR—Analytical paper by the Chairperson-Rapporteur”
(Elements Paper), to the WG on 30 November 2005.72 The chairperson orga-
69. Second Session, supra note 51, ¶ 104.

70. Id. ¶ 109.
71. Id.
72. Elements for an Optional Protocol to the International Covenant on Economic, Social
and Cultural Rights, U.N. ESCOR, Comm’n on Hum. Rts., 62d Sess., U.N. Doc. E/
CN.4/2006/WG.23/2 (2005) [hereinafter Elements for Protocol].
nized the paper to address each of the fourteen elements. During the process
of preparing it, the chairperson convened an experts’ meeting in Cascais,
Portugal, to discuss the Elements Paper’s first draft. The meeting counted on
the invaluable input from experts from different regions of the world, such as
Philip Alston (Australia), Victor Dankwa (Ghana), Paula Escarameia (Portugal),
Kamal Houssein (Bangladesh), Mónica Pinto (Argentina), and Martin Scheinin
(Finland). In addition, three members of the CESCR—Virgínia Brás Gomes,
Giorgio Malinverni and Eibe Riedel—also participated in the consultation
or submitted written comments on the paper’s draft.73
The Elements Paper was divided into four parts. The first part addressed
a communications procedure, including the question of the scope of rights
subject to a communications procedure, admissibility criteria, standing,
proceedings on the merits, interim measures, views, and recommendations
and a follow-up on decisions, recommendations, and reservations. Part II
contemplated an inquiry procedure and Part III an inter-state procedure.
Finally, Part IV handled cross-cutting issues, such as an optional protocol
and domestic decisions on resource allocation; relationship of an optional
protocol to existing mechanisms; analysis and assessment of the impact of
an optional protocol on improving implementation of economic, social, and
cultural rights at the national level; option of having no optional protocol;
and international cooperation and assistance and the costs of an optional
protocol. It identified some questions that the WG should answer, some
decisions that should be made in view of drafting an optional protocol,
and, in some cases, gave hints as to possible solutions for agreements to be
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. ¶¶ 1–2.

74. Id.
75. Third Session, supra note 51, ¶ 99.
76. Id. ¶ 6.
behalf of the Group of African States) expressed the hope that the Working
Group could reach a consensus at its third session to lay the foundations for
the elaboration of an optional protocol.”77 Additionally, Belgium, Croatia,
Finland, Portugal, the Russian Federation, and Spain defended the develop-
ment of an optional protocol, asserting that “the critical mass of knowledge
had been reached to equip the Working Group with a drafting mandate.”78
On the other hand, Australia, Japan, India, the Republic of Korea, and the
United States argued that the option of not having an optional protocol
still needed further discussion, being that there were still many outstanding
issues.79 Moreover, “China, Cuba, Egypt, the Islamic Republic of Iran, and
Nepal emphasized the importance of strengthening international coopera-
tion and assistance” and stressed that an optional protocol would have to
be applicable to all states parties, taking into account their different levels
of development.80 This change in the balance of forces within the Work-
ing Group may have occurred for various reasons: because the debates
matured; because delegates and states started to become more familiar
with economic, social, and cultural rights; because there were compelling
examples of existing adjudication of economic, social, and cultural rights
at the national level given by NGOs; because there was general support to
the optional protocol by the invited experts; or because the African Group
started to regard an optional protocol as an additional avenue for promoting
the right to development.81
The WG, even conscious of the fact that its mandate would expire that
same year and that the CHR (or its successor) would have to take a position
on the continuation of its mandate, decided not to put forth any recom-
mendations. This was again due to the experience the chairperson had at
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. ¶ 7.
78. Id. ¶¶ 10, 16.
79. Id. ¶¶ 11, 18.
80. Id. ¶ 12.
81. Egypt’s Ambassador to Portugal at that time, Ibrahim Salama, was also the Chairperson
of the UN Working Group on the Right to Development. This circumstance and the fact
that Egypt played a crucial role within the African Group might have been reasons for
the growing support for an optional protocol by the African Group.
C. The New Human Rights Council: A Decisive Impetus for Finalizing

the Negotiations of an Optional Protocol
In June 2006, the newly created Human Rights Council decided in Resolu-
tion 1/3 to extend the mandate of the WG for a period of two years. This
resolution also changed the WG’s mandate, directing it to develop an op-
tional protocol to the ICESCR. The Human Rights Council requested that the
chairperson prepare a first draft optional protocol to be used as a basis for
the negotiations. The Council specified, in this regard, that the draft should
include provisions corresponding to the various main approaches outlined in
the chairperson’s Elements Paper and take into account all views expressed
during the sessions of the WG.82
After finishing a first version of the draft, the chairperson again sought
the advice of a number of human rights experts at another meeting held in
Lisbon, Portugal, from 29 September to 1 October 2006. Three members
of the CESCR (Virginia Brás Gomes, Giorgio Malinverni, and Eibe Riedel),
as well as Martin Scheinin (Finland), Colin Gonsalves: (India), Victor Abra-
movich (Argentina), and Victor Dankwa (Ghana) participated therein. The
chairperson then submitted the first draft optional protocol on 23 April
2007.83 An explanatory memorandum that clarifies how the chairperson
“sought to account for the various main proposals made in the course of
. . . negotiations” accompanied the draft.84
The draft kept some options open. For example, in Article 2 on indi-
vidual communications, the draft included the possibility of an à la carte
approach as well as the possibility (in case the “comprehensive approach”
were to be chosen) of excluding Part I of the Covenant (on the right to self-
determination) from the protocol’s scope.85 The first draft also included a
provision in Article 3 on collective communications that is very similar to
language from the 1995 Optional Protocol to the European Social Charter,
which recognizes the right of “international non-governmental organizations
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, ¶¶ 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/HRC/6/WG.4/2*
(2007).
84. Id. Annex II, ¶ 6.
85. Id. Annex I, art. 2 ¶ 1.
86. Id. Annex I, art. 3 ¶ 1.
87. Id. Annex I, art. 3 ¶ 2.
The language of Article 8 of the draft, which pertains to the consideration

of the merits of a claim, basically followed the language of similar provi-
sions in other communications procedures. It added a new paragraph 4 that
mandated the Committee,
[w]hen examining communications under the . . . Protocol concerning article 2,
paragraph 1 of the Covenant, [to] assess the reasonableness of the steps taken by
the State Party, to the maximum of its available resources, with a view to achieve
progressively the full realization of the rights recognized in the Covenant . . . by
all appropriate means.88
The draft also included a provision that prohibited any reservations to the
protocol and an article on “Transfer of competences”—a “sunset clause,”
foreseeing a simpler and quicker procedure for the transfer of the Commit-
tee’s responsibilities “by the present protocol” to another body (for example,
to a successor of the present CESCR).89
1. The Fourth Session of the WG (16 to 27 July 2007)

The WG discussed the draft at its fourth session and completed a first full
reading of the draft before the end of the first week of negotiations. The rapidity
of negotiations caught the WG’s members by surprise, and delegations had
no further instructions that would make any changes in the positions outlined
during the first week. The WG devoted the second week of negotiations to
deepening the discussions on certain issues suggested by the chairperson.
These issues were “the criteria to be used by the Committee in examining
communications” (Article 8§4), “scope of the optional protocol” (Article 2),
“international assistance and cooperation and . . . establishment of a fund”
(Articles 13 and 14), “admissibility criteria” (Article 4), “interim measures”
(Article 5), and “friendly settlement” of dispute (Article 7).90
It is equally important to note that the Inter-American Institute of Hu-
man Rights prepared a “Negotiations Manual for the optional protocol to the
ICESCR” that was distributed to delegations during the fourth session.91 The
Institute, an independent international academic institution that supports the
inter-American system of international human rights protection, created the
manual in order to give Spanish-speaking delegations additional background
information for the negotiations of the optional protocol. An updated English
version of the manual was subsequently distributed to all delegations at the
WG’s fifth session.
88. Id. Annex I, art. 8 ¶ 4.

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, ¶ 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).
The negotiations were very technical and a true drafting challenge. To use
the words of John P. Humphrey,
Most of the delegates were . . . masters in the art of debate; some of them were
politicians on the make, some were almost fanatically attached to a point of view,
a few only occasionally if ever opened their mouths; but most of them were
conscious of the historic role they were playing and rose to the occasion.92
In her opening statement, the chairperson noted that “[i]nstead of being a

problem, [the] diversity [within the working group was] an opportunity.”93
She argued that the WG’s challenge was to agree on a text “which will stay
for the years to come and which will hopefully make a difference for the
lives of those for whom economic, social and cultural rights are still only a
mirage.”94 She asked delegates not to forget what the aim of the instrument
was and mentioned that “this WG will have to show its ability to work on
behalf of those whose economic, social and cultural rights are violated and
who may benefit from an optional protocol.”95
During the debates, delegations labeled Article 2 as being crucial to
and the heart of the draft protocol. Two regional groups (African and Latin
American Groups), the NGOs, and some European states favored the “com-
prehensive approach” and noted that “an à la carte approach would establish
a hierarchy among human rights, disregard the interrelatedness of Covenant
articles, amend the substance of the Covenant, disregard the interest of the
victims and defy the purpose of the optional protocol to strengthen the
implementation of all economic, social and cultural rights.”96 Some states
(Australia, Greece, India, Morocco, Russia, and the United States) favored a
“limited approach” that would exclude Part I of the ICESCR from the scope
of the communications procedure.97 Another group of states favored an à
la carte approach that would allow states to limit the application of the
procedure to only certain provisions of the Covenant. For these states, such
a selective approach “would enable a larger number of States to become
parties to the protocol and allow States to limit the procedure to those rights
for which domestic remedies exist.”98 In addition, Poland proposed to “es-
92. John P. Humphrey, The Memoirs of John P. Humphrey, The First Director of the United
Nations Division of Human Rights, 5 Hum. Rts. Q. 387 (1983).
93. 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 Fourth Session (16 Jul. 2007) (on file with author).
94. Id.
95. Id.
96. See Fourth Session, supra note 90, ¶ 33.
97. Part I of the Covenant is composed of one single provision, namely Article 1 on the
right to self-determination. See ICESCR, supra note 7, art. 1.
98. See Fourth Session, supra note 90, ¶ 37. These states were Australia, China, Denmark,
Germany, Greece, Japan, the Netherlands, New Zealand, Poland, the Republic of Korea,
Russia, Switzerland, Turkey, the United Kingdom, and the United States. Id.
tablish a minimum number of articles that all States parties would have to
accept,” and the Netherlands proposed adding a third paragraph to Article 2
“enumerating those provisions that may be excluded from the protocol.”99
Draft Article 3 on collective communications received general opposition
from delegations (even from some of those that had proposed its inclusion
into the draft), and no state strongly argued for its retention.100 This was also
the case concerning draft Article 23 on the transfer of competences.101
In relation to Article 8§4, the United States suggested replacing the
term “reasonableness” with the concept of “unreasonableness” and adding
a reference to “the broad margin of appreciation of the State party to deter-
mine the optimum use of its resources.”102 Some states (China, India, Japan,
Norway, Poland, and the United Kingdom) “expressed support or interest in
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. ¶¶ 38–39.

100. Id. ¶¶ 47–56.
101. See id. ¶ 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. ¶ 95.
103. Id. ¶ 95.
104. Id. ¶ 139.
105. Id. India suggested deleting draft Article 21. Greece, Poland, and Turkey suggested leav-
ing the matter “to be determined by the principles of international law.” Id. ¶ 140.
106. Id. ¶ 141.
would cause the impression among delegations that in 2008, the WG had
two meetings. Hence, there would be more chances to finalize the optional
protocol that year—a strategy that surprisingly did not raise any opposition
from skeptical states and that proved to be effective.
In light of the discussions held in the July 2007 meeting, the chairper-
son decided to prepare a revised draft optional protocol, which was made
available to delegations by 24 December 2007.107 The chairperson revised
the initial draft on the basis of proposals for amendments made during the
fourth session of the WG, reflecting ideas from the report of the fourth ses-
sion. The chairperson mentioned in the letter to members of the WG that
the “revised draft [did] not aim to reflect all discussions held during the
fourth session . . . . Rather, the draft [aimed] to reflect those proposals for
which concrete text was proposed and presented to the Working Group at
its fourth session.”108 A memorandum containing explanatory remarks on
specific provisions and on how the chairperson “combined different pro-
posals in an effort to use the wording that seemed most consensual” again
accompanied the text.109
2. The Fifth Session of the WG (4 to 8 February and 31 March to 4

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 Hernan 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
107. 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/8/
WG.4/2 (2007) [hereinafter Revised Draft Optional Protocol 2007].
108. Id. ¶ 3.
109. Id. ¶ 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).
Convention was being negotiated, who said, “In drafting a Convention for
acceptance by all States Members of the UN, it [is] not necessary to adopt
a Convention which [is] based on the lowest standards.” The chairperson
also urged states not to “forget those we are now working for—namely the
victims of violations of economic, social and cultural rights.”111 At the outset,
in their respective opening statements, several delegations noted that the
sixtieth anniversary of the Universal Declaration of Human Rights provided
an excellent occasion for adopting an optional protocol.
During the debates, delegations still focused much discussion on Article
2, putting a great deal of the same antagonistic positions on the table.112
Several delegations again supported the deletion of draft Article 3 on collec-
tive communications.113 Regarding draft Article 4, “Canada, New Zealand,
and the United Kingdom proposed a new subparagraph . . . referring to a
threshold of ‘significant disadvantage,’ unless the communication raised a
serious issue of general importance.” This proposal met resistance from sev-
eral delegations because it “would seem to imply that some violations could
be considered insignificant, which was unacceptable.”114 It was, however,
supported by a significant number of states.
In relation to draft Article 5 on interim measures, “Norway and Sweden
proposed adding ‘bearing in mind the voluntary nature of such requests’ at the
end of the paragraph.”115 However, other delegations opposed this proposal
because “the views and requests of treaty bodies . . . were non-binding and
voluntary in nature.”116 Norway and Sweden accepted this explanation and
agreed with the proposed language.
With regard to Article 8, the most controversial issues discussed by the
delegations pertained to paragraph 4. Some states insisted on the inclusion
of an “unreasonableness” criteria, adding a reference to the state’s “broad or
wide margin of appreciation” as well as mentioning the freedom of states to
determine the “appropriate policy measures and allocation of its resources
111. Summary Record of the Twenty-Ninth Meeting, U.N. ESCOR, Comm’n on Hum. Rts.,
2d Sess., 7, U.N. Doc. E/CN.4/AC.1/SR.29 (1948).
112. Revised Draft Optional Protocol 2007, supra note 107, ¶¶ 32–33. Some delegations
proposed the inclusion of a qualifier when referring to the human rights violations
that would be subject to the communications procedure. For example Canada, China,
Poland, and Sweden favored retaining a significant violation. These states also wanted
to limit the new procedure to only address cases affecting “direct” victims.
113. Id. ¶ 42. However, many states, while not supporting the collective communications
provision, expressed support to the proposal aimed at giving NGO’s amicus curiae
standing.
114. 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, ¶ 59, U.N. Doc. A/HRC/8/7 (2008) [hereinafter
Fifth Session].
115. Id. ¶ 66.
116. Id.
in accordance with domestic priorities.”117 Numerous delegations refused to

accept these proposals.118 With regard to Articles 13 and 14, several delega-
tions opposed the establishment of a trust fund, “noting the danger of linking
violations to funding, the risks of duplicating existing United Nations funds
and the practical difficulties in managing such a fund.”119
Article 17, pertaining to the Committee’s Rules of Procedure, was also
the subject of a heated debate because Egypt, on behalf of the African Group,
noted that the provision “should either indicate elements to be included
in the rules of procedure or be deleted.”120 Japan, on the other hand, had
“proposed adding [to that provision] that the States parties may comment
on or make proposal for the rules of procedure, which will be considered
by the Committee.”121 In her closing statement at the end of the first part of
the fifth session on 8 February, the chairperson asked delegations to seek
instructions from their respective governments in order to finalize negotia-
tions at the April meeting.
Between the February and the April meetings of the WG, the chairper-
son held informal consultations with all interested delegations. In fact, she
had bilateral meetings with almost thirty different missions, various NGOs,
and the Group of Facilitators of the optional protocol. She also convened
open-ended informal meetings with all delegations. The meetings turned
out to be excellent occasions to better understand each delegation’s true
bottom lines, the reasons behind each proposal made, and the possibilities
for compromise. During these meetings, the chairperson also had a chance
to share with delegations a third revised draft optional protocol, the text on
which the meeting participants based their discussions.
The second part of the fifth session started with the chairperson’s opening
statement where she asked “all delegations to take the floor, bearing in mind
that we are at a ‘problem solving’ stage of our negotiations and therefore
to avoid repeating arguments made at previous sessions—and which are
contained in past reports of this WG.”122 This time, the chairperson quoted
Albert Einstein, who once said that it is not very wise “to do the same thing
over and over and expect different results.”123 The chairperson continued by
117. Id. ¶ 91.

118. Id. ¶ 114. These delegations were Argentina, Bangladesh, Chile, Costa Rica, Ecuador,
Finland, France, Germany, India, Liechtenstein, Mexico, Portugal, the Russian Federa-
tion, and Sri Lanka. Id.
119. Id.
120. Id. ¶ 123.
121. Id. ¶ 126.
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.
saying that the challenge was to “come up with possible solutions/ compro-
mise proposals to solve the difficulties that we are still faced with—preferably
these proposals should have been tested/ discussed beforehand with inter-
ested delegations that have differing views on the matter at hand.”124 The
chairperson also mentioned that she saw the WG
as a group of privileged people. We have at the reach of our hands the possibility
of truly making history and producing a legal text that will have the potential of
positively affecting and even changing the lives of people all over the world. It
is therefore crucial to always remember that we are not negotiating in abstract
at the Palais des Nations in Geneva. We are negotiating for the people who are
outside this room, that we probably have never met, the majority of whom does
not even know that this Working Group exists, but for whom the coming into life
of the optional protocol might be a tool to ensuring dignity in and giving hope to
their lives. We should bear them in mind during the week that is starting today!125
The High Commissioner for Human Rights also addressed the second
part of the WG’s fifth session and stressed that the establishment of a com-
munication procedure under the ICESCR
will truly be a milestone in the history of universal human rights, . . . send[ing] a
strong and unequivocal message about the equal value and importance of all hu-
man rights [and] put[ting] to rest the notion that legal and quasi-judicial remedies
are not relevant for the protection of economic, social and cultural rights.126
As mentioned above, the second part of the fifth session had before it a
new revised version of the optional protocol.127 Moreover, the chairperson
had also prepared some additional language suggestions that were sent by
e-mail to all missions in Geneva. After the High Commissioner’s statement,
the chairperson shared with the WG her hope that “in this meeting we will
be able to adjust and agree on the draft articles contained in document A/
HRC/8/WG.4/3” and therefore proposed that “we proceed with an article-by
article (and when necessary paragraph-by-paragraph) analysis/review of the
text.”128 The chairperson also expressed her desire that “all delegations will
124. Id.
125. Id.
126. Louise Arbour, High Commissioner for Human Rights, Statement to the Open-ended
Working Group On an Optional International Covenant on Economic, Social and Cul-
tural Rights (31 March 2008), available at http://www.unhchr.ch/huricane/huricane.nsf/
view01/56935B5FB6A5B376C12574250039EAE0?opendocument.
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).
International Covenant on Economic, Social and Cultural Rights, Statement to the Work-
ing Group’s Fifth Session (31 Mar. 2008) (on file with author).
be able to agree—or at least not to object—to the transmission of the text of

the draft Optional Protocol to the Human Rights Council for adoption.”129
Article 1, as contained in the draft, was the first provision upon which
the WG agreed, adopting it on the morning of 31 March 2008. By 3 April,
there were only a few, but crucial, articles pending—the WG had reached
consensus on all others. Therefore, the chairperson announced to the delega-
tions that she would prepare a compromise package that would be submit-
ted to the delegations in the afternoon of that same day. The compromise
proposal was submitted, and the chairperson announced her intention to
analyze the text the following morning.
On 4 April, the WG resumed its meeting, and the chairperson was able
to announce that there was no objection to the transmission of the text to the
Human Rights Council for its consideration. The report reflected statements
made by the delegations. In the afternoon, delegations had a chance to make
final statements. The WG had thus completed its mandate. The draft optional
protocol, as contained as an annex to the report of the WG’s fifth session,
consecrates a system of communications by or on behalf of individuals or
groups of individuals for cases of violations of the rights contained in Parts
II and III of the Covenant.130 As we mentioned before, the chairperson’s
initial draft contained an article foreseeing collective communications as
well as the possibility for amicus briefs. However, no support existed in the
room for the possibility of collective communications (namely because of
the powers to be given to NGOs in that context) and because the possibility
for amicus briefs was preserved elsewhere (more concretely in the wording
of Article 8§1, which does not restrict the information to that submitted “by
the parties”), the provision was deleted as a whole.
It sets, beyond the “traditional” admissibility criteria, a new criterion
that requires that any communication be “submitted within one year after
the exhaustion of domestic remedies.”131 The same Article 3 also determines
the inadmissibility of a communication when “the same matter has already
been examined by the Committee or has been or is being examined under
another procedure of international investigation or settlement.”132
Article 4, dealing with communications not revealing a clear disadvan-
tage, is a novel provision and enables the Committee to “decline to consider
a communication where it does not reveal that the author has suffered a clear
disadvantage, unless the Committee considers that the communication raises
a serious issue of general importance.”133 The WG included this provision
with the aim of dealing with workload issues. The WG was concerned that
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.
the Committee might need authority to manage its workload in such a way
to enable it to focus its resources and time on the most significant cases and
on those of public importance. Therefore, this provision might not ever need
to be used, or at least surely not in the early years of the protocol’s existence.
Article 5 gives the Committee the ability to request states parties to take
interim measures.134 Article 7, another innovative provision within the UN
human rights system, mentions expressly the possibility of the Committee
making “available its good offices to the parties concerned with a [goal] of
reaching a friendly settlement of the matter on the basis of the respect for
the obligations set forth in the Covenant.”135
Article 8, on the “examination of communications,” very significantly
provides in its paragraph 1 that the Committee “shall examine communica-
tions received . . . in the light of all documentation submitted to it.”136 This
provision contains unique language in that the WG eliminated the restriction
“submitted by the parties” (which was contained in an earlier draft), therefore
ensuring that the Committee on Economic, Social and Cultural Rights will
have access to more third party submissions than any other communication
procedure allows for. The final language agreed upon also corresponds to
the suggestion put forward in 1997 by the Committee on Economic, Social
and Cultural Rights.
Furthermore, paragraph 3 of the same provision also states that the Com-
mittee “may consult, as appropriate, relevant documentation emanating from
other United Nations bodies, specialized agencies, funds, programmes and
mechanisms, and other international organizations, including from regional
human rights systems.”137 This provision is aimed at ensuring that the Com-
mittee, when appropriate, seeks information from other organizations and
regional systems that have updated information on a certain situation that
might be under analysis by the Committee.
Paragraph 4 of Article 8 determines that the “Committee shall consider
the reasonableness of the steps taken by the State Party in accordance with
Part II of the Covenant” and also that the state party “may adopt a range
of possible policy measures for the implementation of the rights set forth
in the Covenant.”138 Very significantly, the WG rejected several proposals
introduced by a group of states aimed at ensuring that the state had a “wide
margin of discretion” or a “wide margin of appreciation.”139 In addition, the
WG refused a proposal aimed at stating that the Committee’s competence
would limit itself to assessing whether the measures taken by states were

136. Id. Annex I, art. 8 ¶ 1.
137. Id. Annex I, art. 8 ¶ 3.
138. Id. Annex I, art. 8 ¶ 4.
139. Text of the proposals on file with the author.
“unreasonable.”140 In an informal lunch meeting with the “skeptical states”

during the last week of negotiations, the chairperson had the occasion to
explain that several states (namely European Union member states, African,
and Latin American states) had received clear instructions to reject any
“compromise proposal” by the chair that would contain such concepts.
During that meeting, the chairperson asked that group of states whether
their intention was not, after all, to simply acknowledge that there might
be different legitimate policies from which states can choose to implement
the rights contained in the Covenant. All delegates nodded.
The language that was finally agreed upon was deliberately taken from
the Grootboom Case of South Africa141 and hence recognizes that there may
be a range of ways to achieve compliance. The text does, however, also rec-
ognize that it is the Committee’s role to assess whether reasonable measures
have been adopted and whether they contribute to the realization of the
Covenant’s rights—or rather, fail to do so. This language therefore provides
the necessary reassurance that the Committee will not adopt a position
suggesting that in cases where resource allocation or social policy priorities
are involved, it will simply defer to the decisions of the state party. Rather,
the current language obliges the Committee to ensure effective remedies in
the cases that are often the most pressing issues of economic, social, and
cultural rights violations.
Article 10 foresees the possibility of inter-state communications, which
are subject, however, to an “opt-in” clause.142 Article 11 consecrates an
inquiry procedure that is equally subject to another “opt-in” clause.143 Ar-
ticle 13 obliges states parties to adopt all appropriate measures to ensure
that “individuals under its jurisdiction are not subjected to any form of
ill-treatment or intimidation as a consequence of communicating with the
Committee pursuant to the present Protocol.”144 Article 14, on international
cooperation and assistance, imports some notions from Articles 22 and 23 of
the ICESCR but also determines that a trust fund shall be established “with
a view to providing expert and technical assistance to States Parties . . . for
the enhanced implementation of the rights contained in the Covenant, thus
contributing to building national capacities in the area of economic, social
and cultural rights in the context of the present Protocol.”145 According to
Article 18, the protocol will enter into force “three months after the date of
the deposit . . . of the tenth instrument of ratification or accession.”146 The
140. Id.
141. See Republic of South Africa v. Grootboom, 2001 (1) SA 46 (CC) (S. Afr.).
142. Fifth Session, supra note 114, Annex I, art. 10.
provisions on the Committee’s rules of procedure, on reservations, and on

the transfer of competences were deleted.
3. The Eighth Session of the Human Rights Council (2 to 18 June

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 General

Assembly’s Third Committee, which adopted the text without a vote on 18
November 2008.150 Some weeks later on 10 December 2008—the day the
147. Id. ¶¶ 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 being left out.
adopted 10 Dec. 2008, U.N. GAOR, 63d Sess., U.N. Doc. A/63/435 (2008).
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).
United Nations and the world commemorated the sixtieth anniversary of the
Universal Declaration of Human Rights—the General Assembly’s Plenary
adopted the Optional Protocol to the International Covenant on Economic,
Social and Cultural Rights without a vote. The text of the resolution also
recommends that “the Optional Protocol be opened for signature at a signing
ceremony to be held in 2009, and requests the Secretary-General and the
United Nations High Commissioner for Human Rights to provide the neces-
sary assistance.”151 On 24 September 2009, the Optional Protocol was finally
opened for signature at the 2009 Treaty Event held at the UN Headquarters
in New York. The first state to sign the new treaty was Portugal, and twenty-
eight states followed.152 At the signing event, the High Commissioner for
Human Rights, Navanethem Pillay, mentioned that once the new Optional
Protocol “enters into force, the ensuing jurisprudence that it will stimulate
can offer guidance, with the benefit of concrete examples, regarding the
interpretation of economic, social and cultural rights. It will thus clarify the
scope of application of these rights by national tribunals and adjudicating
bodies.” She added that “[w]ith the adoption of the Optional Protocol, the
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 150, ¶ 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, Paraguay, 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.
violations of economic, social and cultural rights and who see proceedings before
the UN as their only hope to see their rights and their dignity respected.154
The dream and expectation of all those who fought for the Optional Protocol
is that it has the potential to bring, as Eleanor Roosevelt once said, human
rights to “small places, close to home—so close and so small that they can-
not be seen on any maps of the world.”155

International Covenant on Economic, Social and Cultural Rights, Closing Statement to
the Second Session of the Working Group’s Fifth Session (4 Apr. 2008).
155. Eleanor Roosevelt, Address at the Presentation of In Your Hands: A Guide for Community
Action for the Tenth Anniversary of the Universal Declaration of Human Rights (27 Mar.
1958).

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Catarina de Albuquerque: Human Rights Quarterly, Volume 32, Number 1, February 2010, Pp. 144-178 (Article)

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Chronicle of an Announced Birth The Coming into Life of the

Optional Protocol to the International Covenant on Economic,

Human Rights Quarterly, Volume 32, Number 1, February 2010,

Published by The Johns Hopkins University Press

For additional information about this article

Access Provided by your local institution at 12/19/11 9:05AM GMT

Chronicle of an Announced Birth:

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

Later in her Plan of Action, the High Commissioner recognizes that

The realization of socioeconomic rights is still only a mirage for millions—

II. False Twins

In 1966, the adoption of the International Covenant on Civil and Political

is now composed of independent experts and has the function of monitor-

A. Crossing the desert

Additionally, in a statement made in June 1993 during the Vienna World

14. Id. ¶ 211.

governments of Croatia,24 Cyprus,25 Czech Republic,26 Ecuador,27 Finland,28

Norway,35 Portugal,36 Sweden,37 and Syrian Arab Republic.38 Overall, the

the workshop, participants made different proposals on the most appropriate

with questions regarding the feasibility of an optional protocol would be

Also in 2002, the CHR established an open-ended working group to

And in the report’s final paragraph, the IE recommended to the

On 22 April 2003, the CHR adopted resolution 2003/18 in which it

48. Id. ¶ 76.

B. The Commission on Human Rights’ Working Group (WG)—Studying

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

addressed the potential cost implications of the implementation of the

55. Id. ¶ 58–66.

rights was clearly pictured in official UN documents (the working group’s

2. The Second Session of the WG (10 to 20 January 2005)

time to discussions pertaining to the draft optional protocol prepared by the

The chairperson submitted the document, called “Elements for an optional

69. Second Session, supra note 51, ¶ 104.

3. The Third Session of the WG (6 to 17 February 2006)

73. Id. ¶¶ 1–2.

C. The New Human Rights Council: A Decisive Impetus for Finalizing

82. Third Session, supra note 51, ¶¶ 1, 2.

The language of Article 8 of the draft, which pertains to the consideration

1. The Fourth Session of the WG (16 to 27 July 2007)

88. Id. Annex I, art. 8 ¶ 4.

In her opening statement, the chairperson noted that “[i]nstead of being a

99. See Id. ¶¶ 38–39.

2. The Fifth Session of the WG (4 to 8 February and 31 March to 4

in accordance with domestic priorities.”117 Numerous delegations refused to

117. Id. ¶ 91.

be able to agree—or at least not to object—to the transmission of the text of

134. Id. Annex I, art. 5.

“unreasonable.”140 In an informal lunch meeting with the “skeptical states”

provisions on the Committee’s rules of procedure, on reservations, and on

3. The Eighth Session of the Human Rights Council (2 to 18 June

The WG subsequently submitted the draft optional protocol to the General

147. Id. ¶¶ 214, 245.

151. Draft Protocol 2008, supra note 150, ¶ 2.

154. Catarina de Albuquerque, Chairperson of the United Nations Open-ended Working

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