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New avenue for Litigating the Right to Health – Optional Protocol to the ICESCR comes into force

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This post was written by Oscar A. Cabrera, Eric Friedman, and Brian Honermann, all from the O’Neill Institute.

On 5 February, 2013, Uruguay – following quickly on the heels of Portugal – became the 10th country to ratify the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR). In accordance with article 18(1) of the Optional Protocol, this means the Optional Protocol will come into force on 5 May, 2013.

The Optional Protocol empowers the Committee on Economic, Social, and Cultural Rights (CESCR) to receive communications (complaints) from individuals or groups of individuals claiming to be victims of violations of their rights as protected by the ICESCR against countries who have ratified the Optional Protocol. As it stands, these are: Argentina, Bolivia, Bosnia and Herzegovina, Ecuador, El Salvador, Mongolia, Portugal, Slovakia, Spain, and Uruguay. In addition, under Articles 10 and 11, ratifying countries may permit the CESCR to receive inter-state complaints against the country and to conduct inquiries into allegations of grave or systemic violations of economic, social, or cultural rights by a state party. Thus far, only El Salvador and Portugal have acceded to these procedures.

Until now, the CESCR has been limited to issuing concluding observations and recommendations to member countries as part of semi-regular country reporting requirements in the ICESCR and to issuing broad general comments on rights under the Convention – which have helped enumerate the content of the rights under the ICESCR. With the Optional Protocol, the opportunity will now exist at the global level to litigate and begin to develop more concrete standards around the rights in the ICESCR – including the right to of everyone to the enjoyment of the highest attainable standard of physical and mental health (Article 12 of the ICESCR). There has been much written and presented on the utility and feasibility of litigation around the right to health and socio-economic rights more broadly. Many have argued that socio-economic rights are inherently policy and financing decisions outside of the capacity, competency, and practical limitations of courts such that litigation in this area does little to vindicate rights on the ground. Others have argued that litigation around socio-economic rights – when well constructed – is capable of advancing both the understanding of the content of socio-economic rights and have substantive effects on government planning, resource allocation, and service delivery to individuals.

Importantly, there is an opportunity within the framework of the ICESCR and the Optional Protocol, to also begin serious investigations into the social determinants of health – determinants such as access to sufficient food, water, sanitation, and education – and beyond the typical and narrower construction of the right to health based in access to health care services, even as Article 12 itself expressly encompasses many of these determinants.

The O’Neill Institute welcomes the Optional Protocol coming into force, while acknowledging that much more work lies ahead. More countries must ratify the Optional Protocol. Perhaps even more importantly, the utility of the communications mechanism (and the inter-state and inquires mechanisms under Articles 10 and 11) will now depend largely on the quality, care, and construction of the complaints that will be brought and decided by the CESCR. The Optional Protocol holds much potential for the future of developing the right to health and other socio-economic rights, but lawyers, individuals, and activists must be simultaneously cautious and ambitious in testing the new communications procedure if this procedure is to have a real effect on people’s lives.

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The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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