Sunday, March 10, 2013

New complaint mechanism comes into force

The Optional Protocol to the Convention on Economic, Social & Cultural Rights received its 9th and 10th ratifications in January and February, from Portugal and Uruguay.  This means we have a 7th treaty body with an individual complaint mechanism now available. The protocol comes into force once the 10th ratification is received.  The formal entry date will be May 5, 2013 according to UN treaty records.

The other six committees with individual complaint mechanisms now in effect are the Human Rights Committee, the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of All Forms of Discrimination against Women, the Committee Against Torture, the Committee on the Rights of Persons with Disabilities, and the Committee on Enforced Disappearances.  Two other complaint mechanisms will also come into force once a sufficient number of ratifications are received, under the Child Rights Convention and the Migrant Workers Convention.

By the terms of the Optional Protocol on Economic, Social & Cultural Rights a communication may be submitted by or on behalf of individuals or groups of individuals who are under the jurisdiction of any country which has now ratified the Protocol. This includes Argentina, Bolivia, Bosnia, Ecuador, El Salvador, Mongolia, Portugal, Senegal, Spain and Uruguay. The claim may address any violation of any of the economic, social and cultural rights set forth in the Covenant.  Thus claims could include health, welfare, social security, pension rights, work conditions, rights of marriage and the family, education, the right to take part in cultural life, the freedom to take part in scientific research and creative activity, and other rights mentioned in the Covenant.

The usual procedural requirements also apply to the filing of the complaint -- the applicant must first attempt to exhaust all available domestic remedies in the country, the facts alleged must have occurred after the Optional Protocol came into effect for that country, and the claim must be reasonably substantiated with credible information.  Article 3(2) of the Protocol requires that the claim be filed normally within one year after all domestic remedies have been exhausted.

Article 11 of the Protocol also permits states to "opt in" at the time of ratification or anytime thereafter to the special inquiry procedure described in the Optional Protocol.  This new procedure would allow the Committee to consider reliable information that has come to its attention indicating grave or systematic violations of any economic, social or cultural rights. Under this inquiry procedure, the Committee may designate one or more members to conduct an inquiry and report back urgently, including to visit the country in question. The state commits to cooperate with any such inquiry.  So far two states, El Salvador and Portugal, have accepted the competence of the Committee to conduct an inquiry of this nature into their country.

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