RES/8/2 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

Human Rights Council

Resolution 8/2. Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

The Human Rights Council,

Reaffirming the Universal Declaration of Human Rights and the International Covenant on

Economic, Social and Cultural Rights,

Recalling that, in the Vienna Declaration and Programme of Action adopted in June 1993

by the World Conference on Human Rights (A/CONF.157/24), the World Conference

encouraged the Commission on Human Rights to continue the examination of optional protocols

to the International Covenant on Economic, Social and Cultural Rights,

Recalling also that the Vienna Declaration and Programme of Action, the 2005 World

Summit Outcome and General Assembly resolution 60/251 establishing the Human Rights

Council all affirm that all human rights are universal, indivisible, interrelated, interdependent and

mutually reinforcing and must be treated in a fair and equal manner, on the same footing and

with the same emphasis,

Bearing in mind previous resolutions of the Council and the Commission on Human Rights

on the realization of economic, social and cultural rights, and in particular Council resolution 1/3

on the Open-ended Working Group on an optional protocol to the International Covenant on

Economic, Social and Cultural Rights,

Welcoming the report of the Working Group (A/HRC/8/7) and the decision to transmit the

draft optional protocol to the International Covenant on Economic, Social and Cultural Rights to

the Council for its consideration,

1. Adopts the Optional Protocol to the International Covenant on Economic, Social and

Cultural Rights annexed to the present resolution;

2. Recommends that the General Assembly, in accordance with paragraph 5 (c) of its

resolution 60/251, adopt the following draft resolution:

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“The General Assembly,

Welcoming the adoption by the Human Rights Council, through its resolution ..., of the Optional

Protocol to the International Covenant on Economic, Social and Cultural Rights,

1. Adopts and opens for signature, ratification and accession the Optional Protocol to the

International Covenant on Economic, Social and Cultural Rights, the text of which is annexed to the present

resolution;

2. Recommends that the Optional Protocol be opened for signature at a signing ceremony in

Geneva in March 2009 and requests the Secretary-General and the United Nations High Commissioner for

Human Rights to provide the necessary assistance.”

Annex

OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Preamble

The States Parties to the present Protocol,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations,

recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family

is the foundation of freedom, justice and peace in the world,

Noting that the Universal Declaration of Human Rights proclaims that all human beings are born free

and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth therein,

without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion,

national or social origin, property, birth or other status,

Recalling that the Universal Declaration of Human Rights and the International Covenants on Human

Rights recognize that the ideal of free human beings enjoying freedom from fear and want can only be

achieved if conditions are created whereby everyone may enjoy civil, cultural, economic, political and social

rights,

Reaffirming the universality, indivisibility, interdependence and interrelatedness of all human rights

and fundamental freedoms,

Recalling that each State Party to the International Covenant on Economic, Social and Cultural Rights

(hereinafter referred to as the Covenant) undertakes to take steps, individually and through international

assistance and cooperation, especially economic and technical, to the maximum of its available resources,

with a view to achieving progressively the full realization of the rights recognized in the Covenant by all

appropriate means, including particularly the adoption of legislative measures,

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Considering that, in order further to achieve the purposes of the Covenant and the implementation of

its provisions, it would be appropriate to enable the Committee on Economic, Social and Cultural Rights

(hereinafter referred to as the Committee) to carry out the functions provided for in the present Protocol,

Have agreed as follows:

Article 1

Competence of the Committee to receive and consider communications

1. A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence

of the Committee to receive and consider communications as provided for by the provisions of the present

Protocol.

2. No communication shall be received by the Committee if it concerns a State Party to the Covenant

which is not a Party to the present Protocol.

Article 2

Communications

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.

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;

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(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.

Article 4

Communications not revealing a clear disadvantage

The Committee may, if necessary, 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.

Article 5

Interim measures

1. At any time after the receipt of a communication and before a determination on the merits has been

reached, the Committee may transmit to the State Party concerned for its urgent consideration a request that

the State Party take such interim measures as may be necessary in exceptional circumstances to avoid

possible irreparable damage to the victim or victims of the alleged violations.

2. Where the Committee exercises its discretion under paragraph 1 of the present article, this does not

imply a determination on admissibility or on the merits of the communication.

Article 6

Transmission of the communication

1. Unless the Committee considers a communication inadmissible without reference to the State Party

concerned, the Committee shall bring any communication submitted to it under the present Protocol

confidentially to the attention of the State Party concerned.

2. Within six months, the receiving State Party shall submit to the Committee written explanations or

statements clarifying the matter and the remedy, if any, that may have been provided by that State Party.

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Article 7

Friendly settlement

1. The Committee shall make available its good offices to the parties concerned with a view to reaching

a friendly settlement of the matter on the basis of the respect for the obligations set forth in the Covenant.

2. An agreement on a friendly settlement closes consideration of the communication under the present

Protocol.

Article 8

Examination of communications

1. The Committee shall examine communications received under article 2 of the present Protocol in the

light of all documentation submitted to it, provided that this documentation is transmitted to the parties

concerned.

2. The Committee shall hold closed meetings when examining communications under the present

Protocol.

3. When examining a communication under the present Protocol, the Committee 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, and any observations or comments by the State Party concerned.

4. When examining communications under the present Protocol, the Committee shall consider the

reasonableness of the steps taken by the State Party in accordance with Part II of the Covenant. In doing so,

the Committee shall bear in mind that the State Party may adopt a range of possible policy measures for the

implementation of the rights set forth in the Covenant.

Article 9

Follow-up to the views of the Committee

1. After examining a communication, the Committee shall transmit its views on the communication,

together with its recommendations, if any, to the parties concerned.

2. The State Party shall give due consideration to the views of the Committee, together with its

recommendations, if any, and shall submit to the Committee, within six months, a written response, including

information on any action taken in the light of the views and recommendations of the Committee.

3. The Committee may invite the State Party to submit further information about any measures the State

Party has taken in response to its views or recommendations, if any, including as deemed appropriate by the

Committee, in the State Party’s subsequent reports under articles 16 and 17 of the Covenant.

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Article 10

Inter-State communications

1. A State Party to the present Protocol may at any time declare under this article that it recognizes the

competence of the Committee to receive and consider communications to the effect that a State Party claims

that another State Party is not fulfilling its obligations under the Covenant. Communications under this article

may be received and considered only if submitted by a State Party that has made a declaration recognizing in

regard to itself the competence of the Committee. No communication shall be received by the Committee if it

concerns a State Party which has not made such a declaration. Communications received under this article

shall be dealt with in accordance with the following procedure:

(a) If a State Party to the present Protocol considers that another State Party is not fulfilling its

obligations under the Covenant, it may, by written communication, bring the matter to the attention of that

State Party. The State Party may also inform the Committee of the matter. Within three months after the

receipt of the communication the receiving State shall afford the State that sent the communication an

explanation, or any other statement in writing clarifying the matter which should include, to the extent

possible and pertinent, reference to domestic procedures and remedies taken, pending or available in the

matter;

(b) If the matter is not settled to the satisfaction of both States Parties concerned within six months

after the receipt by the receiving State of the initial communication, either State shall have the right to refer

the matter to the Committee, by notice given to the Committee and to the other State;

(c) The Committee shall deal with a matter referred to it only after it has ascertained that all

available domestic remedies have been invoked and exhausted in the matter. This shall not be the rule where

the application of the remedies is unreasonably prolonged;

(d) Subject to the provisions of subparagraph (c) of the present paragraph the Committee shall

make available its good offices to the States Parties concerned with a view to a friendly solution of the matter

on the basis of the respect for the obligations set forth in the Covenant;

(e) The Committee shall hold closed meetings when examining communications under the present

article;

(f) In any matter referred to it in accordance with subparagraph (b) of the present paragraph, the

Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant

information;

(g) The States Parties concerned, referred to in subparagraph (b) of the present paragraph, shall

have the right to be represented when the matter is being considered by the Committee and to make

submissions orally and/or in writing;

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(h) The Committee shall, with all due expediency after the date of receipt of notice under

subparagraph (b) of the present paragraph, submit a report, as follows:

(i) If a solution within the terms of subparagraph (d) of the present paragraph is

reached, the Committee shall confine its report to a brief statement of the facts and of

the solution reached;

(ii) If a solution within the terms of subparagraph (d) is not reached, the Committee shall, in

its report, set forth the relevant facts concerning the issue between the States Parties

concerned. The written submissions and record of the oral submissions made by the

States Parties concerned shall be attached to the report. The Committee may also

communicate only to the States Parties concerned any views that it may consider

relevant to the issue between them.

In every matter, the report shall be communicated to the States Parties concerned.

2. A declaration under paragraph 1 of the present article shall be deposited by the States Parties with the

Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A

declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall

not prejudice the consideration of any matter that is the subject of a communication already transmitted under

the present article; no further communication by any State Party shall be received under the present article

after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the

State Party concerned has made a new declaration.

Article 11

Inquiry procedure

1. A State Party to the present Protocol may at any time declare that it recognizes the competence of the

Committee provided for under this article.

2. If the Committee receives reliable information indicating grave or systematic violations by a State

Party of any of the economic, social and cultural rights set forth in the Covenant, the Committee shall invite

that State Party to cooperate in the examination of the information and to this end to submit observations with

regard to the information concerned.

3. Taking into account any observations that may have been submitted by the State Party concerned as

well as any other reliable information available to it, the Committee may designate one or more of its

members to conduct an inquiry and to report urgently to the Committee. Where warranted and with the

consent of the State Party, the inquiry may include a visit to its territory.

4. Such an inquiry shall be conducted confidentially and the cooperation of the State Party shall be

sought at all stages of the proceedings.

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5. After examining the findings of such an inquiry, the Committee shall transmit these findings to the

State Party concerned together with any comments and recommendations.

6. The State Party concerned shall, within six months of receiving the findings, comments and

recommendations transmitted by the Committee, submit its observations to the Committee.

7. After such proceedings have been completed with regard to an inquiry made in accordance with

paragraph 2, the Committee may, after consultations with the State Party concerned, decide to include a

summary account of the results of the proceedings in its annual report provided for in article 15.

8. Any State Party having made a declaration in accordance with paragraph 1 of the present article may,

at any time, withdraw this declaration by notification to the Secretary-General.

Article 12

Follow-up to the inquiry procedure

1. The Committee may invite the State Party concerned to include in its report under articles 16 and 17

of the Covenant details of any measures taken in response to an inquiry conducted under article 11 of the

present Protocol.

2. The Committee may, if necessary, after the end of the period of six months referred to in article 11,

paragraph 6, invite the State Party concerned to inform it of the measures taken in response to such an

inquiry.

Article 13

Protection measures

A State Party shall take 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.

Article 14

International assistance and cooperation

1. The Committee shall transmit, as it may consider appropriate, and with the consent of the State Party

concerned, to United Nations specialized agencies, funds and programmes and other competent bodies, its

views or recommendations concerning communications and inquiries that indicate a need for technical advice

or assistance, along with the State Party’s observations and suggestions, if any, on these views or

recommendations.

2. The Committee may also bring to the attention of such bodies, with the consent of the State Party

concerned, any matter arising out of communications considered under the present Protocol which may assist

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them in deciding, each within its field of competence, on the advisability of international measures likely to

contribute to assisting States Parties in achieving progress in implementation of the rights recognized in the

Covenant.

3. A trust fund shall be established in accordance with the relevant procedures of the General Assembly,

to be administered in accordance with the financial regulations and rules of the United Nations, with a view

to providing expert and technical assistance to States Parties, with the consent of the State Party concerned,

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.

4. The provisions of this article are without prejudice to the obligations of each State Party to fulfil its

obligations under the Covenant.

Article 15

Annual report

The Committee shall include in its annual report a summary of its activities under the present

Protocol.

Article 16

Dissemination and information

Each State Party undertakes to make widely known and to disseminate the Covenant and the present

Protocol and to facilitate access to information about the views and recommendations of the Committee, in

particular, on matters involving that State Party, and to do so in accessible formats for persons with

disabilities.

Article 17

Signature, ratification and accession

1. The present Protocol is open for signature by any State that has signed, ratified or acceded to the

Covenant.

2. The present Protocol is subject to ratification by any State that has ratified or acceded to the Covenant.

Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

3. The present Protocol shall be open to accession by any State that has ratified or acceded to the

Covenant.

4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of

the United Nations.

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Article 18

Entry into force

1. The present Protocol shall enter into force three months after the date of the deposit with the

Secretary-General of the United Nations of the tenth instrument of ratification or accession.

2. For each State ratifying or acceding to the present Protocol, after the deposit of the tenth instrument of

ratification or accession, the protocol shall enter into force three months after the date of the deposit of its

instrument of ratification or accession.

Article 19

Amendments

1. Any State Party may propose an amendment to the present Protocol and submit it to the

Secretary-General of the United Nations. The Secretary-General shall communicate any proposed

amendments to States Parties, with a request to be notified whether they favour a meeting of States Parties

for the purpose of considering and deciding upon the proposals. In the event that, within four months from

the date of such communication, at least one third of the States Parties favour such a meeting, the

Secretary-General shall convene the meeting under the auspices of the United Nations. Any amendment

adopted by a majority of two thirds of the States Parties present and voting shall be submitted by the

Secretary-General to the General Assembly for approval and thereafter to all States Parties for acceptance.

2. An amendment adopted and approved in accordance with paragraph 1 of this article shall enter into

force on the thirtieth day after the number of instruments of acceptance deposited reaches two thirds of the

number of States Parties at the date of adoption of the amendment. Thereafter, the amendment shall enter into

force for any State Party on the thirtieth day following the deposit of its own instrument of acceptance. An

amendment shall be binding only on those States Parties which have accepted it.

Article 20

Denunciation

1. Any State Party may denounce the present Protocol at any time by written notification addressed to

the Secretary-General of the United Nations. Denunciation shall take effect six months after the date of

receipt of the notification by the Secretary-General.

2. Denunciation shall be without prejudice to the continued application of the provisions of the present

Protocol to any communication submitted under articles 2 and 10 or to any procedure initiated under

article 11 before the effective date of denunciation.

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Article 21

Notification by the Secretary-General

The Secretary-General of the United Nations shall notify all States referred to in article 26,

paragraph 1 of the Covenant of the following particulars:

(a) Signatures, ratifications and accessions under the present Protocol;

(b) The date of entry into force of the present Protocol and of any amendment under article 19;

(c) Any denunciation under article 20.

Article 22

Official languages

1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are

equally authentic, shall be deposited in the archives of the United Nations.

2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to

all States referred to in article 26 of the Covenant.

28th meeting 18 June 2008

[Adopted without a vote.]

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