Ciarán Finlay is Legal & Policy Officer with FLAC.
FLAC has long expressed concerns regarding difficulties in accessing justice for violations of economic, social and cultural (ESC) rights in Ireland. Despite ratifying the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1989, an international treaty which guarantees the protection of a range of basic rights such as health, housing, education, decent work and social security, there are few avenues to enforce ESC rights when they are violated. There is limited protection of ESC rights in Irish law and the judiciary have traditionally taken a conservative approach regarding the justiciability of such rights.
To address this gap in protection, FLAC is calling for ratification of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR). The OP-ICESCR is a complaints mechanism which provides individuals with a remedy at the international level where their ESC rights have not been upheld at the national level.
Despite signing the OP-ICESCR on 23 March 2012, Ireland has not taken any concrete steps towards the final stage of ratification. Ratification of the OP-ICESCR would enable alleged victims to present their complaints to the UN Committee on Economic, Social and Cultural Rights, an independent UN body that monitors implementation of the ICESCR.
In May 2016, the Minister for Foreign Affairs and Trade, Charlie Flanagan, stated that ratification of the OP-ICESCR would only be considered after a “wide-ranging examination of all the issues, screening of obligations to be assured under the Optional Protocol, extensive consultation with all relevant government departments and consideration by the Government in due course.”
Thus far, 21 States have ratified the OP-ICESCR. These include 8 European Union Member States, namely Portugal, Spain, Italy, France, Slovakia, Finland, Belgium and Luxembourg.
Last year, the UN Committee delivered its first decision under the OP-ICESCR, finding Spain in violation of the right to adequate housing for failing to uphold the right to an effective remedy and ensure that legislation regulating mortgage enforcement proceedings complied with the ICESCR.
FLAC is calling on the State to take immediate steps to ratify the Optional Protocol for a number of reasons.
To date, Ireland has ratified six core international human rights treaties, including the ICESCR, the International Covenant on Civil and Political Rights, the Convention on the Elimination of all forms of Discrimination against Women, the Convention on the Rights of the Child, the Convention against Torture and the Convention on the Elimination of all forms of Racial Discrimination. Individuals can bring complaints under any of the other five international human rights treaties Ireland has ratified, save for the ICESCR.
In its Roadmap to Ratification of the UN Convention on the Rights of Persons with Disabilities, the Government indicated that it will ratify the Optional Protocol to the Convention on the Rights of Persons with Disabilities at the same time that the Convention is ratified, which is expected by the end of 2016. This is a welcome measure which will enable individuals to bring complaints to the UN Committee on the Rights of Persons with Disabilities. However, ratification of the OP-ICESCR has not been afforded the same level of consideration and, barring progress in the interim, will remain an outlier amongst the individual complaint mechanisms.
Given that ESC rights remain largely unenforceable in Irish courts, the OP-ICESCR would provide a mechanism for individuals to have their voices heard and their rights vindicated. Ratification of the OP-ICESCR would also greatly assist in closing the accountability gap which exists in Ireland for violations of ESC rights.
In September 2015, the Sustainable Development Goals, the negotiations of which were co-facilitated by Ireland, were adopted. Goal 16 calls on States to provide access to justice for all by 2030. Ratification of the OP-ICESCR would signify Ireland’s commitment to upholding the human right of access to justice while achieving the Sustainable Development Goals.
While a member of the UN Human Rights Council, Ireland exhibited strong leadership in the promotion and protection of human rights at the international level. Throughout its term of membership, Ireland consistently reaffirmed its commitment “to promoting and protecting all human rights without discrimination of any kind and in a fair and equal manner”. Ratification of the OP-ICESCR would demonstrate a clear commitment to protecting all human rights both at home and abroad.
Following its June 2015 review, the UN Committee on Economic, Social and Cultural Rights recommended that Ireland ratify the OP-ICESCR. More recently, Ireland accepted two recommendations to ratify the OP-ICESCR following its examination under the Universal Periodic Review (UPR) mechanism in May. Again, ratification of the OP-ICESCR would underline Ireland’s strong commitment to both the treaty body monitoring and UPR processes.
Finally, 2016 marks a year-long campaign by the United Nations to celebrate 50 years since the adoption of two landmark human rights treaties, the International Covenant on Civil and Political Rights and the ICESCR. The campaign is entitled “Our Rights. Our Freedoms. Always”. To address the current imbalance in how civil and political rights are protected in Ireland as compared to ESC rights, and to mark this anniversary celebration in a meaningful way, the State should commence the process for ratification of the OP-ICESCR as soon as possible.
In short, now is the time to ratify the OP-ICESCR. Our Rights. Our Freedoms. Always.