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ICESCR Individual Communication System: Procedure, Jurisdiction, and Admissibility

  • Journal of Human Rights Studies
  • Abbr : JHRS
  • 2024, 7(1), pp.1-52
  • DOI : 10.22976/JHRS.2024.7.1.1
  • Publisher : Korean Association of Human Rights Studies
  • Research Area : Social Science > Law > Law of Special Parts > Human Rights / International Human Rights Law
  • Received : May 15, 2024
  • Accepted : June 10, 2024
  • Published : June 30, 2024

BAEK Buhm-Suk 1,  Won Yoo Min 2,  Song, Da Som 2

1경희대학교
2서울대학교

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ABSTRACT

The Optional Protocol to the International Covenant on Economic, Social, and Cultural Rights, adopted in 2008 and entering into force in 2013, provides an individual communications procedure. It provides for considering complaints or allegations by individuals who believe that their rights guaranteed by the ICESCR have been violated by a state party and for the remedy of such violations by the treaty body, the Committee on ESCR. Although the Republic of Korea is a state party to the ICESCR, it has yet to ratify the Optional Protocol. It is, however, necessary to consider accepting the individual communication system in the future to ensure adequate domestic implementation and protection of ESCR. Despite this, domestic literature has yet to analyze this system in depth. While the ICESCR follows the basic principles of other core human rights treaties, it also has unique elements. This paper provides a detailed review of the system as a whole, based on the Optional Protocol, and analyses the main issues raised in the drafting process and its differences from other human rights treaties in the context of all the Committee on ESCR's previous decisions on individual communications. Two main features that emerged from the analysis were the emphasis placed on the exhaustion of local remedies in the admissibility process and the fact that Article 3, paragraph 2(e) of the Optional Protocol was most frequently invoked as a ground for inadmissibility. These two features imply that local remedies, in particular domestic judicial procedure, should be effective for remedying the claimed violation of the rights under the Covenant. States parties to the ICESCR have a clear obligation to take progressive steps towards the realization of ESCR. This includes not only the substantive obligation to protect ESCR, but also the responsibility to ensure adequate procedures for effective remedies when ESCR are violated. As a state party, the Republic of Korea must fulfill these procedural guarantees of ESCR. One effective way to do this is by ratifying the Optional Protocol to the ICESCR, which would further strengthen the domestic protection of ESCR.

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