4.7 International remedies

Victims of violations of ESC rights and their counsel may have to consider bringing their case to the scrutiny of international or regional human rights protection mechanisms, when they have been unable to obtain justice at domestic level, either because the laws or legal mechanisms are unavailable or ineffective in practice.

Regional and international human rights systems offer a variety of judicial and non-judicial mechanisms and procedures. These include those administered by supervisory bodies monitoring the general implementation of the human rights. There may also be certain limited opportunities for the judicial review by international judicial and quasi-judicial bodies of alleged violations of the rights and provisions of these instruments. In addition, a communication may be brought to the attention of independent experts serving under special procedures, not for adjudication or decision, but with a view possibly to facilitating informal resolution of a complaint.

There is a range of quasi-judicial and judicial bodies at both universal and regional levels that are specifically dedicated to the examination of complaints in cases of alleged violations. Today, almost all UN human rights treaties benefit from an individual complaint or communication mechanism.^[224] Among these communications procedures that can all be relevant to the protection of ESC rights, the Optional Protocol to the ICESCR, which came into force in May 2013 for the States that are parties to it, is the most comprehensive instrument for the general international protection of ESC rights.^[225] The Optional Protocol creates a complaint mechanism as detailed below, as well as an inquiry procedure for States that explicitly accepted the competency of the ESCR Committee to conduct such inquiries. The Optional Protocol also introduces a possibility for the UN Committee on Economic, Social and Cultural Rights (CESCR) to recommend interim measures to avoid irreparable harm.

In order to use the individual communications procedure under the OP-ICESCR, practitioners will have to pay particular attention to the admissibility criteria introduced by the Optional Protocol.^[226]

Some of the main issues that practitioners considering a communication under the OP-IESCR will have to take into account:

• Communications can concern any of the ESC rights enshrined in the ICESCR;
• Communications can be brought by and on behalf of individuals and groups of individuals;

To be admissible a communication will have to fulfil the criteria contained in article 3 of the Optional Protocol that reads:

“Article 3 Admissibility

1. The Committee shall not consider a communication unless it has ascertained that all available domestic remedies have been exhausted. This shall not be the rule where the application of such remedies is unreasonably prolonged.

2. The Committee shall declare a communication inadmissible when:

(a) It is not submitted within one year after the exhaustion of domestic remedies, except in cases where the author can demonstrate that it had not been possible to submit the communication within that time limit; (b) The facts that are the subject of the communication occurred prior to the entry into force of the present Protocol for the State Party concerned unless those facts continued after that date; (c) 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; (d) It is incompatible with the provisions of the Covenant; (e) It is manifestly ill-founded, not sufficiently substantiated or exclusively based on reports disseminated by mass media; (f) It is an abuse of the right to submit a communication; or when (g) It is anonymous or not in writing.”

At the regional level, the human rights protection systems offer various opportunities, particularly in Africa, the Americas and Europe. In Asia, particularly in the Southeast Asian sub-region covered by ASEAN, and the Middle East, much of which is covered by the League of Arab States machinery under the Arab Charter on Human Rights, such systems are only at an embryonic stage.^[227] In Europe and the Americas, the systems have been used strategically to litigate ESC rights, but the protection mechanisms are more developed for civil and political rights than for ESC rights. Indeed, in the context of the Council of Europe, the European Court of Human Rights is a judicial body that issues binding decisions based on the European Convention on Human Rights and Fundamental Freedoms (ECHR), including on questions that engage ESC rights, if indirectly. The ECHR protects a full range of civil and political rights such as the right to life, to privacy and freedom from torture or discrimination that have been the basis for jurisprudence relevant for ESC rights.

The Council of Europe does contain a treaty protecting ESC rights, namely the European Social Charter, the implementation of which is ensured by the European Committee of Social Rights. The latter is not strictly a judicial body and can receive only collective complaints.^[228] However, it has been used successfully to remedy a number of ESC rights violations, including violations of the right to housing^[229], to education^[230], to be free from forced labour^[231] and the prohibition of child labour.^[232]

In the Americas, the additional protocol of San Salvador complements the American Convention on Human Rights in the area of Economic, Social and Cultural Rights. This can be seen in the Inter-American Commission on Human Rights’ admissibility report for the Jorge Odir Miranda Cortéz and others v. El Salvador case, regarding the State’s failure to supply HIV drugs. The Commission stated that it will interpret article 10 of the Protocol of San Salvador on the right to health in the light of provisions of articles 26 and 29 of the American Convention on Human Rights.^[233] Likewise, in the case of the Yakye Axa Indigenous Community v. Paraguay, the Inter-American Court interpreted the meaning of a dignified life as contained in article 4 (1) of the American Convention (right to life) in the light of article 10 (right to health), article 11 (right to a healthy environment), article 12 (right to food), article 13 (right to education) and article 14 (right to benefits of culture) of the Protocol of San Salvador and concluded that the State had failed to ensure that the community lived under dignified conditions.^[234]

As in the European context, practitioners and human rights defenders have used civil and political rights and other provisions for an indirect protection of ESC rights by the quasi-judicial and judicial bodies of the regional system. In Africa, ESC rights practitioners can rely on the African Charter for Human and People’s Rights, which includes a substantial catalogue of rights, including ESC rights, and from which a rich jurisprudence has emerged.^[235]

Even if not at the core of litigation work, legal practitioners may also want to consider the broader array of opportunities to bring attention to a case at the international level. Indeed, any ESC rights violation may be brought to the attention of an international procedure, even if the procedure does not have an adjudicative function. For instance, even the periodic monitoring exercises of both the United Nations and regional systems, allow for the submission of information on specific situations of violations of human rights. Practitioners involved in litigation of ESC rights may therefore consider reaching out to civil society groups who submit information to the United Nations Universal Periodic Reviews at the Human Rights Council, or more importantly to the United Nations treaty-bodies in charge of supervising the implementation of their respective treaties, and in particular in charge of the examination of States periodic reports of this implementation. Similar procedures and opportunities exist at the regional level.^[236]

Among the UN treaty-bodies, the CESCR is not only of significance for ESC rights litigants and lawyers, but also for the other Committees who have regularly addressed legal and policy issues that are relevant for ESC rights.^[237] Indeed, other Committees can either supervise a treaty that also entails ESC rights or address ESC rights through their connection with other rights that fall within their mandate.

In addition to the opportunity to draw attention to a case in the context of the monitoring of policies and State reporting, international and regional mechanisms offer various complaint and inquiry procedures. At the UN level, the special procedures,^[238] held by independent experts address important conceptual issues in their thematic reports that can be helpful to practitioners searching documentary and expert evidences. Many of these procedures, including those addressing ESC rights, communicate directly with States and other actors involved in violations in the context of their country missions and allegation letters, as well as through urgent appeals procedures requesting immediate action to avoid irreparable harm. The latter is a kind of complaint procedure by which a special procedure mandate holder is asked, by victims and their supporters, to intervene in a case by engaging in a dialogue with the government of the State concerned. In addition, there is the also the possibly of engaging the urgent appeal procedures, where the special procedure mandate holder will request the concerned State to take immediate preventive action to avoid irreparable harm to a victim or potential victim, much like a request for interim measures to an adjudicative body.