Series on economical, social and cultural rights. Bulletin No 1

1. COMISION COLOMBIANA DE J URISTAS
Organización no gubernamental con status consultivo ante la ONU
Filial de la Comisión Andina de Juristas (Lima) y de la Comisión Internacional de Juristas (Ginebra).
Bulletin No. 1: Series on economic, social, and cultural rights
The approval of the Optional Protocol of the International Covenant on
Economic, Social, and Cultural Rights, and its importance for Colombia
Democracy, stability, and peace cannot survive much longer in conditions
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of chronic poverty, dispossession, and abandonment.
The practice of the national tribunals around the world has sufficiently
demonstrated that economic, social, and cultural rights (ESCR) are susceptible of
being claimed and protected through judicial mechanisms, which, in the hands of
the citizens, constitute effective ways of defending this type of guarantees.2 An
example of this is the extensive jurisprudence of the Colombian Constitutional
Court, which throughout the years has been admitting that ESC rights are
justiciable through the tutela action under certain conditions.3
In spite of the above, the United Nations System did not have a procedure for
informing the Committee on Economic, Social, and Cultural Rights (CESCR) of
violations of this type of guarantees. In this sense, the approval by the United
Nations General Assembly of the Optional Protocol of the International Covenant
on Economic, Social, and Cultural Rights (ICESCR) this past December 10,
Human Rights Day and day of commemoration of the 60th anniversary of the
Universal Declaration of Human Rights, acquires the utmost importance.
1
See United Nations, World Conference on Human Rights, Declaration of the Committee on
Economic, Social, and Cultural Rights, doc. A/CONF.157/PC/62/Add.5, March 26 1993.
2
See Víctor Abramovich y Christian Courtis, Los derechos sociales como derechos exigibles,
Madrid, Trotta, 2002. Gerardo Pisarello, Vivienda para todos: un derecho en (de) construcción, El
derecho a una vivienda digna y adecuada como derecho exigible, Barcelona, Icaria, 2003.
3
Antonio Barreto Rozo, Amparo constitucional de los derechos sociales, A propósito del carácter
social de la acción de tutela, en Derecho constitucional: perspectivas críticas, Bogotá, Universidad
de los Andes Siglo del Hombre editores, 1999, pp. 85 122.
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___________________________________________________________________
Personería jurídica: resolución 1060, Agosto de 1988, Alcaldía Mayor de Bogotá
Calle 72 No. 12- 65 Piso 7 Tel: (571) 3768200 - 3434710 Fax: (571) 3768230
E-mail: ccj@col.net.co Apartado Aéreo 58533 Bogotá, Colombia

2. 1. Interdependence of rights and violations of ESC rights
As the Secretary General of the United Nations remarked in his Report to the
Human Rights Council for 2007 on the question of the realization in all countries of
economic, social and cultural rights, human rights violations in contexts of armed
conflict such as exists in Colombia do not affect exclusively civil and political rights
(CPR), but rather they affect all types of fundamental guarantees and freedoms of
the victims:
Violations of economic, social and cultural rights, or indeed any rights, do not
take place in a vacuum. Such violations often result from, as well as are the
cause of violations of civil and political rights. The different types of violations
interact and mutually reinforce each other, often with devastating effects.
Systematic discrimination and inequalities in access to health care or housing,
sometimes in the context of competition over scarce or dwindling resources,
may lead to, or exacerbate, social or political tensions leading to conflict or
violent confrontation, which in turn perpetuate cycles of deprivation and
exclusion. This close interrelationship has been acknowledged by truth
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commissions as well.
Hence, the breaches of civil and political rights can be just as atrocious as those
that violate economic, social, and cultural rights. Proof of the gravity and the
magnitude that violations against ESC rights can have is precisely the case of the
Colombian armed conflict, in which close to 4 million persons 5 have been displaced
from their territories and now find themselves in conditions that keep them from
satisfying minimal conditions of subsistence with respect to their rights to health,
4
United Nations, Human Rights Council. Report of the Secretary-General on the question of the
realization in all countries of economic, social and cultural rights (A/HRC/4/62) submitted to the
Human Rights Council, fourth session, March 2007 doc. A/HRC/4/62.
5
Norwegian Refugee Council, Internal displacement, Overview of trends and developments in
2007, Geneva, 2008, p. 6.
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3. housing, education, food, work, etc.6 For these reasons, given the interdependence
among all rights, it is urgent that a mechanism exist that allows the victims of
violations to ESC rights to be heard by an international body, as has been the case
for more than thirty (30) years with regard to CPR by virtue of the Optional Protocol
to the International Covenant on Civil and Political Rights, which has been in force
in Colombia since March 23, 1976.
2. Approval and content of the Optional Protocol to the International
Covenant on ESC Rights (ICESCR)
Five years after Resolution 2003/18 of the Commission on Human Rights, which
established an open working group to study the possibility of drafting an
optional protocol to the ICESCR, the Human Rights Council approved by
consensus the text of the Protocol through Resolution 8/2 of June 18, 2008,
ordering it be sent to the United Nations General Assembly for final adoption. On
December 10, 2008, the plenary session of the U.N. General Assembly approved
the text of the Protocol, stipulating that it should remain open for signature by the
State s in a ceremony to be held in 2009.
According to the text approved by the General Assembly, the Optional Protocol to
the ICESCR establishes a system of communications and another of investigations
before the Committee on Economic, Social and Cultural Rights (CESCR). By
means of the communications system, individuals or groups of individuals will be
able to send to the CESCR complaints regarding the violation of their economic,
social, and cultural rights, while by virtue of the investigation procedure the
Committee, upon receiving reliable information on serious and systematic
violations of the rights enunciated in the ICESCR, will designate one or more of its
6
Comisión de Seguimiento a la política pública sobre el desplazamiento forzado (Monitoring
Committee on public policies on forced displacement), Proceso nacional de verificación de los
derechos de la población desplazada, Primer Informe a la Corte Constitucional, January 31 2008,
available at www.codhes.org.
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4. members to initiate the corresponding investigations and present an urgent report
to the Committee. 7
The following are some of the characteristics of the Optional Protocol to the
ICESCR regarding the communications system:
- The presentation of communications requires that all legal resources
available in the internal jurisdiction be exhausted, except if the transit
through these resources takes an unjustifiably long time.
- Communications must be presented within the year after having exhausted
internal legal resources.
- Communications cannot be sent that refer to matters having already been
examined by the Committee in accordance with another international
examination procedure.
- Before rendering an opinion on the essence of a communication, the
Committee will be able to adopt provisional measures to prevent possible
irreparable damages to the victim or victims of the presumed violation.
- Once a communication is admitted by the Committee, it must be sent to the
interested State Party, which will have six months to present explanations or
declarations to the Committee indicating the corrective measures taken.
- Once the Committee renders its judgment and recommendations with
respect to a communication, the interested State Party must, within the
following six months, submit its answer in writing regarding the measures
taken in order to comply with the judgment and recommendations.
- Every State will be able to recognize the competence of the Committee for
receiving and examining communications from other State parties with
regard to their compliance with the obligations derived from the ICESCR.
7
Articles 2 and 11 of the Optional Protocol to the ICESCR, United Nations General Assembly,
Report of the Human Rights Council, 63rd session, doc. A/63/435, November 28 2008.
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5. Regarding the investigation procedure, the following aspects are worthy of
attention:
- The investigation carried out by the Committee can include a field visit when
it is justified and with the approval of the State Party.
- The investigation will be confidential and the Committee will request the
collaboration of the State Party throughout all the phases of the procedure.
- Once the investigation is concluded, the Committee will send the interested
State the observations and recommendations it deems appropriate.
- Within the six months following the results of the investigation, the interested
State will present its own observations to the Committee.
Thus, by virtue of the Optional Protocol to the ICESCR, mechanisms will be set up
for the justiciability of social rights in the United Nations system.8 Furthermore,
these international mechanisms will result in strengthening the judicial exigibility of
ESC rights before the local tribunals for two reasons: On the one hand, the
jurisprudence of the CESCR will make it possible to continue to determine exactly
the contents of each of the ESC rights and to ratify once more that these are
susceptible of being recognized judicially, thus clearing up the doubts of some
tribunals that refrain from taking on complaints regarding ESC rights based on the
supposed lack of precision of their contents; and, on the other, the work of the
CESCR will be complementary to the decisions of the tribunals that have
developed a generous jurisprudence on the topic, but that have not been able to
guarantee that their rulings are fully complied with. Thus, for example, the
ratification of the Protocol by Colombia would strengthen the protection of ESC
rights by those tribunals that continue to have doubts as to their content and
justiciability, and would complement the work of the Constitutional Court with
regard to rulings that have not been complied with in a comprehensive manner,
8
According to Article 18 of the Optional Protocol to the ICESCR, this will go into effect three months
after the deposit before the United Nations Secretary-General of the tenth instrument of ratification
or adherence. United Nations General Assembly, Report of the Human Rights Council, 63rd
session, doc. A/63/435, November 28 2008.
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6. such as Sentence T-025 of 2004 and its follow-up decrees concerning the situation
of the internally displaced population.
For the above reasons, it is of the utmost importance that the Colombian State be
one of the first to ratify the Protocol, thus confirming its commitment to this
instrument of international law and to the mechanisms contained therein, after
being one of the States that sponsored its approval by the United Nations General
Assembly.
For further information, please contact: Gustavo Gallón Giraldo, Director CCJ
(Tel. 571-376 8200, ext. 115).
Bogotá, March 6, 2009.
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