Exam (elaborations)
LCP4807 EXAM PORTFOLIO 2023
- Institution
- University Of South Africa (Unisa)
LCP4807 EXAM PORTFOLIO FIRST SEMISTER 2023
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QUESTION 1In response to the inefficacies of the original enforcement mechanism of the
ICESCR, the United Nations, in an effort to strengthen oversight, created the
Committee on Economic, Social and Cultural Rights (CESCR) in 1985 under
ECOSOC Resolution 1985/17. The CESCR is a body of 18 independent experts with
a mandate to monitor the implementation of the ICESCR by its state parties. The
creation of this committee marked a significant step forward in the enforcement of
the Covenant's rights. The CESCR's primary task is to review the periodic reports
submitted by the state parties every five years. These reports detail each state's
measures and progress towards achieving the observance of the rights recognized
in the ICESCR. Under Article 161, state parties are obliged to submit these
comprehensive reports, which form the foundation for review and evaluation.
After a detailed examination of each report, the CESCR issues its "concluding
observations". These observations, as mandated by Article 17 2, outline an evaluation
of the progress made by each state party, including the measures taken and the
difficulties encountered in implementing the ICESCR. In addition, the Committee
puts forth recommendations aimed at overcoming challenges and accelerating
progress. Despite these advancements, it's important to note that the CESCR's
mechanism of enforcement was somewhat limited. The process still relied heavily on
the self-reporting system, a system dependent on the accuracy and honesty of the
reporting states. Moreover, the CESCR was not equipped to receive individual
complaints or grievances at this stage. As a result, there was no way to hold state
parties accountable for potential or alleged breaches of the Covenant rights at an
individual level.
Even with the creation of the CESCR, the question of accountability remained a
central issue. The Committee lacked the power to enforce its recommendations.
Instead, it relied on the voluntary compliance of the state parties, their commitment
to the ICESCR, and their willingness to engage in constructive dialogue with the
Committee. The CESCR did have the authority to issue "general comments" - non-
binding interpretations that elaborate on the content of the rights contained in the
ICESCR and provide guidance on the ways these rights can be implemented. For
1
Article 16 of the ICESCR
2
Article 17 of the ICESCR
, instance, the CESCR has provided general comments on the right to the highest
attainable standard of health,3 the right to social security4 and the right to water5
While these comments are instructive, they do not in themselves compel state
parties to act or sanction them for non-compliance. Therefore, while the
establishment of the CESCR marked a significant advancement in the enforcement
of the ICESCR, it had its limitations. This set the stage for further development of
enforcement mechanisms, leading to the introduction of the Optional Protocol that
allowed for individual complaints. The introduction of this Protocol marked a major
shift towards a more robust and inclusive enforcement mechanism under the
ICESCR.
The landscape of enforcement witnessed a major transformation in 2013 when the
Optional Protocol to the ICESCR came into force. This Protocol provided an
unprecedented expansion of accountability mechanisms. For the first time, the
CESCR was empowered to receive and consider communications from individuals or
groups who claimed that their rights, as set forth in the Covenant, had been violated
by a state party. This was a notable departure from previous arrangements, where
states were the primary actors. The Optional Protocol, as outlined in Articles 1-5, set
the stage for direct engagement between the CESCR and affected parties. Article 2 6
specifically allowed individuals and groups under the jurisdiction of a state party to
submit written communications to the Committee, detailing their complaints. Article 3 7
set the admissibility criteria for the complaints and Article 5 8 allowed the Committee
to make its views known on these complaints.
This change in enforcement marked a significant shift in the dynamics of human
rights enforcement, bringing it closer to the ground realities. It not only enabled
individual voices to be heard, but also held state parties directly accountable for their
actions or inactions that resulted in rights violations. However, despite the advent of
the Optional Protocol, enforcement of the ICESCR is not without challenges. The
effectiveness of the ICESCR and its Optional Protocol depends largely on the
political landscape and legal infrastructure within each state party. The Covenant and
3
General Comment No. 14
4
General Comment No. 19
5
General Comment No. 15
6
Article 2 of the Optional Protocol
7
Article 3 of the Optional Protocol
8
Article 5 of the Optional Protocol
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