Cheffi Brenner, Michel Doucin, Nantes, enero 2006
Has the possibility of individual collective communications helped to enhance the protection of rights under other treaties?
Several experts who are members of treaty monitoring bodies authorised to receive individual or collective communications asserted that the existence of such procedures had led to substantial progress in the protection of the rights concerned. The arguments are basically of three types. First, the possibility of individual communications helps to clarify States’obligations; second, the examination of individual situations leads to a better understanding of issues that would otherwise remain theoretical; and third, it leads to improved protection and has a beneficial effect on national systems.
I. Clarification of States’obligations
One of the arguments often put forward by opponents of the draft Protocol is that the justiciability of economic, cultural and social rights would be undermined by their lack of precision. Clearly defining economic, cultural and social rights is therefore a necessary preliminary to giving them better protection. Indeed clarification of the rights occurs by the control and not the contrary. (Jacques Fierens)
“As can be seen from the conclusions of the Committee’s sixth session in 1991 and the independent expert’s recent report, the idea [of allowing the possibility of individual communications] should help to refine the outline, nature and scope of economic, social and cultural rights through in-depth analysis of the legal problems raised by each individual case.” (Paul Gérard Pougoué)
“In many countries, it is analysis of actual cases that has made interpretation and clarification of rights possible. […] In South Africa, Latin America and India, for example, the courts have issued judgments clarifying provisions that were not sufficiently clear.
The optional protocol, [by allowing for the possibility of individual communications], will not only encourage the justiciability [of ESCRs] […] but will also be helpful in mutually strengthening national, regional and international case law and establishing a clear framework for the justiciability of ESCRs at all levels.” (Virginia B. Gomes)
II. Providing a practical perspective on theoretical issues
The possibility of examining real cases would help to deepen understanding of the theoretical principles. Economic, social and cultural rights are generally regarded as being collective by nature, instituting obligations of means that should be assessed through programmed26 and gradual27 measures.
“The general recommendations that [the Committee] draws up to help States parties fulfil their obligations remain theoretical. The experience derived from actual cases, after receiving individual communications, would give it a practical understanding of failures to fulfil obligations under the Covenant, which in return would help to make the rights in question less theoretical. An understanding closer to reality, made possible by examining actual cases, would be bound to be helpful to the Committee in drawing up general recommendations.” (Virginia B. Gomes)
The possibility of individual or collective communications would also be a way of placing individual situations back at the centre of the understanding of social and economic rights. For legal practitioners, the victim’s “voice » has an essential place amidst purely legal considerations and may influence a decision by focusing attention on practical matters. That has been shown by the Grootboom case, the first case concerning the right to housing heard by South Africa’s Constitutional Court under the new constitution. Judge Jacob’s descriptions of the conditions in which Irene Grootboom and her family lived had an impact that a periodic report would never have had. The possibility of communications would therefore open up a space in which practical consideration could be given to the situation of both individuals and States. (Bruce Porter)
The effectiveness of a right can also be assessed from the extent to which violations of that right are sanctioned. The possibility of individual or collective communications would be bound to help ensure fairer sanctions for all parties.
“Human rights, including economic, social and cultural rights, universally revered, are applied in practice, after they have been legally approved, only if, on the “social stage » of individuals and institutions, they are exercised and attempts are made to restore them and improve their application in the event of violations. In a democracy there must be room for debate and regulation with regard to legal proclamations and protests, legitimate or not, for the purposes of effectuation and social peace. Constitutional commitments given by States cannot be held at arm’s length from social realities and the process of social change.” (Didier Agbodjan)
In the context of the European Social Charter, for example, although the procedure is collective and not individual, the possibility of communications has enabled States to “comply with it ever more effectively, which underlines the preventive role of the procedure: they have taken steps to ensure conformity in order to prevent claims from being referred to the Committee”. (Régis Brillat) It has also helped to give the general public a better understanding of the Charter, to develop and clarify case law and, all in all, to improve States’fulfilment of their obligations. (Asbjorn Eide)
“An individual communications procedure could also serve to identify areas in which international cooperation would be desirable or necessary.” (Eric Tistounet)
III. Improving existing systems of protection
As the Portuguese chair of the working group on economic, social and cultural rights, Ms. Albuquerque, has emphasised in the report intended for the working group’s session in February 2006, and as several participants in the Nantes seminar concur, experience shows that existing communication procedures act as an important catalyst at national level.
Members of human rights treaty committees have noted that their findings on the basis of individual appeals have led to immediate improvements for the victims and the enforcement of legislation making certain actions illegal or improving situations. These decisions have helped to inform national courts about the content of the rights concerned. As far as the European Social Charter is concerned, there is a growing number of examples where national situations have been brought into conformity after the European Committee of Social Rights has found that they are not compliant.28 (Régis Brillat)
The possibility of individual or collective communications should provide a means of gradually constituting an extensive database of case law on an international scale which, because of its coherence, should inspire and, where necessary, inform national courts and encourage States to perfect the jurisdictional or quasi-jurisdictional guarantees offered by their domestic legislation so as to ensure that their responsibility is not invoked at an international level. (Paul Gérard Pougoué). Therefore, the optional protocol should be comprehensive enough in his scope so as to permit a real implementation of economic, social and cultural rights.
Consideration of the justiciability of economic, social and cultural rights potentially contributes an additional and essential element to the expression of a true international solidarity that is beginning to emerge on this issue, by envisaging the completion, under conditions still to be defined, of the edifice of national judicial systems. The rule of law in general and the possibility of redress, especially on appeal, are an excellent incentive for greater fairness and independence in national judicial systems. (Michel Doucin)
Periodic reports already provide an opportunity for constructive dialogue between the Committee and the States concerned. Individual communications would contribute to this dialogue, improving national protection of rights in return. Thus, “the recent decision of the African Commission on Human and People’s Rights on the suitability of the care provided by mental health institutions is an example of the way in which, bearing budget restrictions in mind, solutions are found that would clearly not have been identified if complaints had not been made and hearings held. The Gambian government acknowledged during the procedure that it had enough drugs to meet the needs of mental health patients.” (Malcolm Langford)
(1) : Lucie Lamarche, “Les droits économiques, sociaux de la personne sous le contrôle de la société civile: de la substitution des modes de mise en oeuvre à la complémentarité”, in Ethique économique des droits de l’Homme, Editions Universitaires, Fribourg, Switzerland, 1998, p. 327.
( Didier Têtêvi Agbodjan, “La problématique internationale des DESC”, 2) : Les droits économiques, sociaux et culturels: exigence de la société civile, responsabilité de l’Etat, Edition Karthala, 2003, p. 37.
(3) : See the Council of Europe website. The Social Charter section contains country fact sheets indicating positive developments that have occurred.