ICESCR AND THE OP-ICESCR

Daniela Ikawa, ESCR-Net

RIGHTS For more information on content, look at the CESCR’s General Comments

•Right to self-determination•Right to work•Right to just and favorable conditions of work•Right to form and join trade unions•Right to social security, including social insurance•Right to protection of the family•Right to adequate housing•Right to adequate food•Right to be free from hunger•Right to the highest attainable standard of physical and mental health•Right to water•Right to education•Right to enjoy the benefits of scientific progress•Right of an author to benefit from the protection of moral and material interests resulting from scientific, literary or artistic production

GENERAL STATE OBLIGTIONS

General Comments n. 3/20

States Parties must also avoid discrimination in access to these basic rights, take progressive steps towards the full realization of ESCR to the maximum of their available resources, prioritize minimum core obligations and ensure that no unjustified retrogressive measures are taken.

NON-DISCRIMINATION (IMMEDIATE OBLIGATION) : GC n. 20

The ICESCR requires that ESCR are available to all people without discrimination regardless of the individual’s race, colour, sex, language, religion, political and other opinion, national or social origin, property, birth or other status. “Other status” includes age, disability, nationality (including refugee status, migrant workers and stateless persons), marital and family status, sexual orientation and gender identity, health status, place of residence and economic and social situation.

PROGRESSIVE REALIZATION

Deliberate and concrete steps (national plan, resource allocation, mapping of situation)

NON-RETROGRESSION (IMMEDIATE)

States Parties must ensure that no deliberate retrogressive measures are taken by, for example, cutting essential rights- realizing programmes.

MINIMAL CORE (IMMEDIATE)

The “minimum core content” of a right consists of the baseline level to which a State Party must give priority for all persons and indicates a minimum standard below which a State is presumed to be failing to comply with the ICESCR.

SPECIFIC STATE OBLIGATIONS – OBLIGATIONS REGARDING SPECIFIC RIGHTS

• The obligation to respect (immediate, negative obligation) human rights requires States Parties to refrain from interfering directly or indirectly with people’s enjoyment of these rights.

• The obligation to protect (immediate, positive obligation) refers to the obligation to protect rights from the intervention of third parties

• The obligation to fulfil (positive obligation) implies taking steps towards the full realization of all human rights.

RELEVANCE OF THE OP-ICESCR

• Possibility of presenting communications (most efficient mechanism for the protection of rights in the UN)

• Timely justice (backlog)• Possibility of systematic impact/structural change

(public policies/plans)• Focus on positive obligations• Possibility of more concrete, more complex

recommendations related to specific cases• Existence of progressive GC that can feed the

analysis on concrete cases

ADMISSIBILITY UNDER THE OP

• Exhaustion of domestic remedies• Exception: No effective remedies

• Undue delay• Threats• No implementation• No legal aid

• Same case has not been considered by similar procedure

• 1 year of exhaustion of domestic remedies