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July 10, 2013

OP-ICESCR Enters into Force: New Opportunities for Recourse to Work Rights Violations

by Asylum Access

The 5th of May marked an important day in the human rights world as the Optional Protocol to the International Covenant on Economic Social and Cultural Rights (OP-ICESCR) received its requisite 10th ratification, triggering its entry into force.

????????????????????????????????????????????????????????????????????????????????Now operational, OP-ICESCR offers an avenue through which individuals, groups and third parties may file complaints against ratifying States for violations of rights set forth in the ICESCR. In establishing the complaints procedure, the Protocol offers a much-needed international mechanism by which rights under the ICESCR can be legally enforced. The significance of this is considerable given that ICESCR has been operational for close to 40 years (entering into force in 1976) but, until now, has functioned without any mechanism to enforce those rights. Complaints will be considered by the UN’s Committee on Economic, Social and Cultural Rights (CESCR), a body of independent experts established under ECOSOC and mandated to monitor the implementation of ICESCR.

For Ecuador, one of the 10 countries party to OP-ICESCR and also home to the largest number of refugees in Latin America, the Protocol’s entry into force means that refugees who have been subjected to labor rights abuses at the hand of the State may seek legal recourse at the international level.

Although the right to work is protected in a number of international law instruments, including the 1951 Refugee Convention, the ICESCR deals most comprehensively with the right. As set forth in Articles 6 and 7 of the Covenant, State parties are obliged to assure that all individuals have the opportunity to work in just, favorable and safe working conditions. This obligation is threefold in that States must: a.) respect the right by refraining from directly or indirectly interfering with the enjoyment of the right; b.) protect the right by taking measures to ensure third parties, such as businesses, do not interfere with the right; and c.) fulfill the right by adopting appropriate legislative, administrative, budgetary, judicial and other measures to ensure the right is provide for, promoted and enforced.

Although Ecuador’s Constitution of 2008 guarantees refugees the right to work, refugees routinely report that they face obstacles accessing the workforce on fair and equal footing as that of their Ecuadorian neighbors. Indeed, a turbulent economy and a competitive labor market makes finding work difficult for many within the country, but systematic xenophobia of refugees and misapplication of immigration and labor laws are not permissible under international law.

Enshrining the right to work in the Constitution, with no further actions to ensure that the right is realized in practice, is not sufficient to satisfy Ecuador’s obligations to respect, protect, and fulfill the right to work under the treaty. Compliance requires the government to take positive steps to ensure that business owners and others in the labor market ensure refugees have equal access to the workforce, safe working conditions and fair remuneration. Failure to meet this threshold will open the door for a complaint before CESCR.

OP-ICESCR entry into force comes at a time when strategic litigation is increasingly being embraced by the global refugee rights community as a valuable tool to protect the rights of refugees. When other advocacy initiatives prove to be ineffective and appeals to the legislative and political branches go unacknowledged, human rights organizations are approaching judicial and quasi-judicial bodies, such as CESCR, to challenge violating laws, policies and practices.

Thanks to the OP-ICESCR’s entry into force, Asylum Access is now strategizing as to how the complaints procedure may be best used to expose governments such as Ecuador for rights violations, holding them accountable to their obligations under international human rights law.

Anna Wirth is the Global Policy Fellow at Asylum Access. She  previously studied and practiced law in Melbourne, Australia (Monash University) and received her European Master’s in Human Rights and Democratisation (E.MA) from EIUC, in partnership with University of Helsinki.

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