Cheffi Brenner, Michel Doucin, Nantes, January 2006
How can mechanisms be articulated at different levels if, at the lower levels, the same rights are not justiciable?
This technical question is related to the preceding one. The debate has brought out that the fact that the same rights are not justiciable with respect to different levels of justiciability does not represent a contradiction to their complementarity, quite the contrary. The solutions which have emerged have been clear procedural rules (I) and the organization of an interchange between the different levels (II).
I. Clear procedural rules
The application of the principle of subsidiarity would solve this problem. “It is first within the framework of the national legal system that all recourse should by exercised on behalf of individuals whose Human Rights have been violated, with recourse to international mechanisms only secondarily if the national system of protection proves weak or inadequate.” (Régis de Gouttes). “It would be necessary in this case to provide for exceptional procedures by which communications could be examined before the exhaustion of all domestic remedies, with these exceptional cases clearly provided for by well-established procedural guarantees.” (Philippe Texier).
One result would be a harmonization in the protection of Human Rights on the international level, as a complement to what exists at the national level. The “principle of optimal efficiency” of each of the procedural levels should also be applied, which implies the correct distribution of their respective roles: each must fulfill its duty on the national level, and then on the international level, as well as respect the “principle of interaction and cooperation” between the national and international levels, all of which will make it possible to avoid confrontation or conflict between national and international systems. Taking into account all three of these principles (subsidiarity, optimal efficiency, and interaction and cooperation) is all the more necessary today, because our international legal system has become very complex, with a multiplicity of procedures and avenues of recourse as regards the protection of the Human Rights on the domestic, regional, and universal level, all of which may engender problems of overlap, redundancy, and even conflict in norms and procedures, with each body tending to follow its own dynamic and to go to the very end of its field of competence. (Régis de Gouttes).
II. A universal mechanism as component of a dynamic to “attenuate or fill the gap”
The relation between the different levels of dealing with communications addressed by complainants may be understood as a dynamic or ongoing process. Exchanges occur between these levels that enrich each level of jurisprudence. One can be astonished by this complexity but still the multiplicity of procedures is good because of this enrichment. (Marina Eudes)
“In the last thirty years, economic, social, and cultural rights have given rise to the elaboration of mechanisms of justiciability of great pragmatic creativity, as much on the universal as on regional levels: several jurisdictions, courts and Covenant committees have very astutely used the legal dimension of the principle of non discrimination to “cover” a good number of economic, social and cultural rights ; mechanisms combining the intervention of independent experts and that of the States have been tested (in particular, the European Social Charter); threshold measures have been imagined that organize a step-by-step progression, from mediation to litigation (for example, the system of “national contact points” put in place by the OECD). To this multilateral creativity must be added the innovation that has blossomed on national political levels, with the appearance, for example, in several Latin American countries, of rapporteurs from civil society on a given theme of interest.” (Michel Doucin)
When weaknesses appear at one of these levels, the others contribute to their attenuation. Thus, if “the majority of the West-African constitutions, doubtless under the influence of the African Charter on Human and Peoples’ Rights, consecrate civil and political rights as well as economic, social and cultural rights […], in practice, in the absence of laws organizing the possibility of recourse before the courts on the basis of economic, social, and cultural rights recognized by the Constitution, this constitutional resource remains purely theoretical.” (Vincent Zakane) Therefore a universal mechanism could give a real meaning to these resources.
The clever interconnection between the different rights allows for an extension of court jurisprudence. The higher levels can play a pedagogical role. The African Commission on Human and Peoples’ Rights (1) has shown the way to national jurisdictions by broadly interpreting the rights of which it is the watchdog and by giving detailed argumentation in support of its conclusions. Thus, as regards communication 159/96, Union interafricaine des droits de l’Homme v. Angola, concerning the mass expulsions of West Africans from Angola in 1996, the Commission considered that “[m]ass expulsions of any category of persons, whether in the basis of nationality, religion, ethnic racial or other considerations constitute a special violation of human rights. This type of deportation calls into question a whole series of rights recognized and guaranteed in the Charter ; such as the right to property (article 14), the right to work (article 15), the right to education (article 17 paragraph 1), and results in the violation by the State of its obligation under Article 18 paragraph 1 which stipulates that “the family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical and moral health.” By deporting the victims, thus separating some of them from their families, the defendant state has violated and violates the letter of this text.” (Viktor Oware Dankwa)
Similarly, as regards the violations of the rights of Black Mauritanians to exercise, enjoy, and participate in their culture, including their language, the Commission observed that “[l] anguage is an integral part of the structure of culture ; it in fact constitutes its pillar and means of expression par excellence. Its usage enriches the individual and enables him to take part in the community and its activities. To deprive a man of such participation amounts to depriving him of its identity”. (Viktor Oware Dankwa)
When, as in Senegal, the possibilities for internal recourse are limited, the existence of an appeals mechanism on the international level can only encourage the national judicial system to be more effective in this area. Even if it is for the State parties to be the first guarantor of the respect of international law on the national level, as well as of the application of the relevant national laws, namely through an independent judiciary, the adoption of an optional protocol could constitute an important complement to its action. (Mamadou Badji)
If becomes apparent, despite a broad jurisprudential interpretation, that a right is not justiciable either on a national or regional level, one could envisage that the Committee would take this into account only during the examination of the periodic report from the State and would deal with the individual and group communications received in this framework. In the case of countries not submitting a report, a right for the Committee itself to take these cases on must be envisaged.
A solution could be to give, after ratification of the protocol, transitional delay to States in order to put in place domestic mechanisms to advocate ICESCR rights that are not covered at that level. Such a procedure exists within the World Intellectual Property Organization (WIPO) (Jacob Schneider)
At last, complaints often concern both economic, social and cultural and civil and political rights, it is thus necessary to create bridges so as to ensure that the principle of indivisibility of these rights switches from theory to practice. (Léopold Donfack Sokeng)
In sum, an articulation allowing the optimal exercise of competence at each level, combined with a universal mechanism, would help to attenuate the technical difficulties posed a priori by legal jurisdiction limited to the national or regional levels or different from one to another.
(1) : The African Court of Human and Peoples’Rights was established by the Charter of Human Rights and the Rights of Peoples which was ratified by all 54 African States, with the exception of Madagascar.