individual Communication Guide

The Committee for Economic, Social and Cultural Rights (CESCR) may consider complaints brought by individuals who allege that their ICESCR rights have been violated. Specifically, the Committee is empowered to consider claims that a State Party to the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) has violated one of the human rights contained in the International Covenant on Economic, Social and Cultural Rights (ICESCR). 

On this page you can find:

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

• A step-by-step guide to the different stages of the individual communication process

• A collection of additional resources where further information can be found

The information on this page was last updated on the 26th April 2021.

The optional protocol

Step-by-step guide to the individual complaints procedure

The Individual Communication process begins with the submission of a complaint (or ‘petition’) to the Committee.

Complaints are to be submitted to the Petitions and Inquiries Section of the Office of the High Commissioner for Human Rights. They do not have to be submitted by lawyers and the Committee explicitly strives to take a “victim-centred approach” and “refrain from imposing any unnecessary formalities”. The Committee has recently published a new individual complaints form, as well as guidance on the process of submitting an individual communication. Both may be accessed below:

• Form (Word): English | Français | русский | Español

• Guidance (Word): English | Français | русский | Español

Upon receipt, the Petitions and Inquiries Section will register a complaint. Complaints will occasionally not be registered, for example if they are directed at a State that is not a party to the Optional Protocol.

When submitting a complaint it is possible to ask the Committee to issue a request that the State party concerned take interim measures. Similar to an injunction, the purpose of interim measures is “to avoid possible irreparable damage to the victim or victims of the alleged violations” before the Committee has considered the communication (article 5 OP-ICESCR). If a State party does not follow a request from the Committee to take interim measures, it will be in violation of article 5 of the Optional Protocol. It should be stressed, however, that a Committee’s decision to request interim measures “does not imply a determination on admissibility or on the merits of the communication”. Consult the Committee’s guidelines on interim measures for further detail.

In accordance with article 8 (1) of the Optional Protocol, the Committee may also accept third party submissions (amicus curiae briefs). The Committee’s guidance on third-party interventions may be accessed here.

Almost 60% of all registered communications end in a discontinuance decision. This means that the communication is ended without proceeding to a final decision by the Committee.

In the majority of these cases the Committee takes the decision to discontinue a communication at the request of the author, whose circumstances have often changed for the better since they initially submitted their complaint. For example, in the case of Elisabet Posada Pérez et al v Spain, a mother and daughter who had claimed that their right to housing had been violated by an eviction, requested that their communication be discontinued as they had been assigned social housing.

Occasionally, the Committee decides to discontinue communications in which it has not been possible to contact the author. It has also discontinued several communications at the request of the respondent State party.

The Committee begins its consideration of complaints by assessing their admissibility. Two thirds of the communications that are not discontinued fail at this stage.

According to article 2 of the Optional Protocol, communications can only be brought by individuals or groups of individuals who claim to be “victims” of a violation of a Covenant right. As the Committee stated in S.C. and G.P. v Italy, the failure of authors to substantiate their status as “real or potential victims” will result in a finding of inadmissibility.

Further inadmissibility criteria can be found in article 3 of the Optional Protocol. In order to be admissible:

article 3 (1): All domestic remedies must have been exhausted, with an exception if they are “unreasonably prolonged”.

article 3 (2) (a): A communication must be submitted within one year after the exhaustion of domestic remedies. There is an exception if the author can show that it has not been possible to submit within this time limit.

article 3 (2) (b): The facts that are the subject of the communication must have occurred after the entry into force of the Protocol for the State party concerned, unless those facts continued after that date. This provision refers to the temporal jurisdiction of the Committee, which it often refers to as its competence ratione temporis.

article 3 (2) (c): The same matter must not have already been examined by the Committee and must not be under examination by another international procedure.

article 3 (2) (d): A communication must be compatible with the provisions of the Covenant. This provision refers to the substantive jurisdiction of the Committee, often termed its competence ratione materiae.

article 3 (2) (e): A communication must not be manifestly ill-founded, insufficiently substantiated, or exclusively based on reports disseminated by mass media.

In accordance with article 4 of the Optional Protocol, the Committee may also decline to consider a communication “where it does not reveal that the author has suffered a clear disadvantage”. This is not a condition of admissibility, but rather a “discretionary power not to consider a communication that fails to meet a minimal level of severity if necessary in order to focus its resources on best discharging its functions” (Ben Djazia et al v Spain).

The Committee has developed a coherent jurisprudence on the majority of these admissibility criteria. To find cases in which the Committee has interpreted each of the admissibility provisions, please consult our database of CESCR decisions.

If the Committee determines that a communication is admissible, it will proceed to consider the communication on its merits. It will consider submissions presented by the authors of the communication, the respondent State and any third-party, and reach a decision as to whether there has been a violation of the ICESCR.

When reviewing the merits of a communication, the Committee must determine whether a State’s actions or omissions can be reasonably justified given their procedural and substantive obligations under the ICESCR. This is explicitly provided for by article 8(4) of the Optional Protocol, which stipulates that “when examining communications… the Committee shall consider the reasonableness of the steps taken by the State Party”.

In applying this reasonableness standard, the Committee has developed a model of review that is based on justificatory triggers. In essence, a set of circumstances – such as a failure to provide alternative accommodation to a person evicted into homelessness – gives rise to a burden on the State to justify their conduct.  The intensity of the Committee’s scrutiny of the State party conduct will vary depending on the particular circumstances of each case. Thus, for example, if the impact of the State’s conduct is severe or if the person affected is particularly vulnerable, the Committee will scrutinise the State’s conduct more closely.

When the Committee engages in closer scrutiny, its approach resembles the proportionality or limitations analysis that is conventionally applied by constitutional and human rights adjudicatory bodies (see article 4 ICESCR). Thus, when a State party has imposed a prima facie restriction on a Covenant right it may be asked to justify that its actions:

1. are authorised by national law;  

2. have a legitimate objective;

3. are rationally connected to the legitimate objective pursued;

4. constitute the minimal interference with individual rights that will achieve the same objective;

5. imposes a burden on individual rights that is not disproportionate to its benefits (known as proportionality in the strict sense)

For further information, see Sandra Liebenberg, Between Sovereignty and Accountability: The Emerging Jurisprudence of the United Nations Committee on Economic, Social and Cultural Rights under the Optional Protocol (2020).

If the Committee establishes that the respondent State party has violated the Covenant, it can make two different sets of recommendations.

• Individual recommendations in respect of the author, which are specific to the case at hand. For example, the Committee may recommend that the respondent State ensure that the eviction of the author does not proceed, or that the State awards compensation for damages that the author has suffered.

• General Recommendations, which are designed to ensure that the respondent State party removes structural impediments to the realisation of the right in question. For example, the Committee often recommends that State parties adopt legislative and/or administrative measures in order to prevent further violations of Covenant rights.

The Committee’s Views and recommendations are not formally binding as a matter of international law. However, they are considered authoritative determinations of State human rights obligations under the International Covenant on Economic, Social and Cultural Rights, and the duty of State Parties to comply with their international treaty obligations implies a duty to cooperate in good faith with the Committee’s Views.

The Optional Protocol provides the basis for a dialogical “follow-up” mechanism through which the Committee can monitor the implementation of its recommendations (article 9 OP-ICESCR):

• When the Committee has found a violation of the Covenant the respondent State Party is given six months to submit a written response on the measures that it will take to implement the Committee’s recommendations.

• Alongside the State response, the Committee may consider further comments from the author of the communication, as well as additional third party submissions.

• The Committee will then make a decision as to whether its recommendations have been satisfactorily implemented.

• If the recommendations have not been satisfactorily implemented, the Committee may keep the communication under review and request that the State take further action and/or provide additional information.

The Committee has released two reports under the follow-up mechanism thus far, the first in its 66th session (accessible here) and the second in its 68th session (accessible here). The reports contain information on communications concerning Spain, Ecuador and Italy. Further information on the follow-up mechanism may be found in the Committee’s Rules of Procedure under the Optional Protocol (accessible here).

Additional Resources

In 2020, Sandra Liebenberg, a former member of the Committee, published an article entitled “Between Sovereignty and Accountability: The Emerging Jurisprudence of the United Nations Committee on Economic, Social and Cultural Rights under the Optional Protocol.” The article is highly recommended, particularly on account of its close analysis of the approach that the Committee has followed when considering both the admissibility and the merits of communications. It may be accessed here.

In 2016 “The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: A Commentary” was published by Pretoria University Law Press (PULP). The commentary was edited by Malcolm Langford, Bruce Porter, Rebecca Brown & Julieta Rossi and has been made available in full. it includes the following chapters:

• Malcolm Langford, Bruce Porter, Rebecca Brown & Julieta Rossi
  Introduction

• Catarina de Albuquerque and Malcolm Langford

  The Origins of the Optional Protocol

• Christian Courtis and Julieta Rossi

  Individual Complaints Procedure

• Donna J. Sullivan

  The Inquiry Procedure

• Malcolm Langford, Cheryl Lorens and Natasha Telson

  Inter-State Procedure

• Bruce Porter

  Reasonableness and Article 8(4)

• Malcolm Langford

  Substantive Obligations

• Rebecca Brown, Lilian Chenwi and Michael Ashley Stein

  Equality and Non-Discrimination

• Viviana Krsticevic and Brian Griffey

  Interim Measures

• Viviana Krsticevic and Brian Griffey

  Remedial Recommendations

• Başak Çalı

  Enforcement

The Geneva Academy of International Humanitarian Law and Human Rights has also produced a briefing paper on the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (2013). It may be accessed here.