Cheffi Brenner, Michel Doucin, Nantes, January 2006
Is a general mechanism necessary seeing as the most important rights are already covered by special mechanisms, either under specialised institutions or regional organisations?
Under the current system, mechanisms are indeed incomplete, but some assert that these cover “the most important” rights. The question is subject to discussion seeing as it generates queries regarding the hierarchy of rights and their indivisibility (I). The incomplete mosaic aspect of the current system generates coherence problems (II); a universal mechanism would facilitate (quasi-) judicial case law extensions to all economic, social and cultural rights (III).
I. Are the most important economic, social and cultural rights covered ?
It was first made known that several rights, the important nature of which cannot be denied, are not covered by any of the existing theme mechanisms. This is the case, for example, of the right to food, the right to water and the right to health, which constitute the right to life. The list itself not being satisfactory, it can be enlarged with other « important » rights : the right to housing, traditionally debated, which in fact does not benefit from organised protection through an approved theme procedure for receiving communications under the United Nations, and which appears in certain countries’constitutions as coming under the fundamental rights in view of its implications on health, family life, education, work, etc. The same queries apply to the right to social protection, a determining factor for displaying favourable social behaviours towards social and economic development : traditional practices, hostile to the exercising of certain rights, such as women’s right to education, cause the persistence of insecurity and precariousness.
Regional mechanisms, nonetheless, often have a weak action in regions where satisfaction of “the most important » rights appears the most fragile. For example, accession to the Protocol to the African Charter on Human and Peoples’Rights, itself establishing an African Court on Human and Peoples’Rights, and to the optional clause of Article 34 enabling the said Court to receive and examine communications from individuals, has been somewhat timid. More than seven years after its adoption, the Protocol has only been ratified by approximately twenty States out of 53, and of them, only one State has signed the declaration in accordance with Article 34 of the Protocol. (Vincent Zakane)
It should be further noted that the incoherence of the implicit hierarchy, constituting the current quasi-judicial coverage system, stands out more bluntly since the International Community has identified and decided to back “ten objectives for the millennium”, half of which escape from the such coverage: reducing hunger, ensuring universal primary education, reducing infant mortality, parturition and AIDS diseases! (Michel Doucin).
Additionally, rights qualified as “important” are interdependent among themselves and with others: the right to health cannot be dissociated from the right to water, from the right to decent housing, from the right to food, to social protection, etc. A fragmented vision, which could be satisfied by creating specific procedures under, for example, the FAO and the WHO, but which would not enable this deficiency to be properly solved.
As shown through the vain research for a list of “fundamental” rights, it is due to the indivisible nature of the economic, social and cultural rights, as well as to an absurd situation, that effective protection of only a minority among them is enabled at international level. And as such indivisibility also links economic, social and cultural rights to civil and political rights, the question of a global enforceability of all human rights emerges here: why indeed should humans be better protected against torture than against famine, two neighbouring torments in terms of pain? Why be more attentive to the freedom of political expression rather than to the possibility of enjoying adequate education, the latter nevertheless conditioning the former ? (Simon Walker)
“The Universal Declaration of Human Rights reflects the principle of the equal status of all human rights. Although we have a tendency to make distinctions among fundamental human rights in terms of abstract ‘categories’such as ‘civil and political’and ‘economic, social and cultural,’ or ‘first generation,’ ‘second generation,’ etc., this approach lacks intellectual rigor. Such categorizations overshadow what is common to all human rights, and overemphasize irrelevant differences. Of course, the methodology for protecting and promoting certain rights can differ, just as the capacity of States and the types of resources required to guarantee enjoyment of various rights differ. But the characteristics inherent in the nature and enforceability of human rights do not justify different levels of commitment to the enjoyment of all rights. To deny social, economic and cultural rights by reducing their meaning to that of mere aspirations would overlook not only the historical origins of all human rights, but also their conceptual and functional connections”. (Asbjorn Eide) (1)
II. A general mechanism to make existing protection systems consistent with each other
Regional protection schemes differ somewhat, lacking consistency in their coverage of the rights, entailing thereby incoherence among them.
For example, each West African State is a Member of the African Union and a party to the 1981 African Charter on Human and Peoples’ Rights, devoted, in a single document, not only to civil and political rights, but also to economic, social and cultural rights, thus recognising the indivisibility of all human rights. These may, therefore, be brought before the African Commission on Human and Peoples’Rights, having the competence to receive and examine communications from individuals, thus able to sustain all rights incorporated in the said Charter, including economic, social and cultural rights. Having said that, such economic, social and cultural rights stated in the African Charter are well short of those recognised by the International Covenant relating to economic, social and cultural rights. The African Charter only refers to a limited number and in very general terms : the right to work under equitable and satisfactory conditions and to receive equal pay for equal work (Art. 15); the right to enjoy the best attainable state of physical and mental health (Art. 16); the right to education and the right to freely take part in the cultural life of the community (Art. 17); the right to protection of the family (Art. 18) and the rights of women and the child (Art. 18). Furthermore, the African Commission’s judicial proceedings are extremely limited in terms of ESCR protection : for more than 250 decisions made, only approximately ten concerned ESCRs, directly or indirectly. (Vincent Zakane)
The Protocol of San Salvador (2) regarding Economic, Social, and Cultural Rights relates only to the right to education and the freedom of association (3). (cf. in addition, article by Magdalena Sepulveda, first part)
The European Social Charter Committee, on its part, does not develop examination of communications as far as does the European Court in its Convention for the Protection of Human Rights and Fundamental Freedoms, in view of its extensive interpretation of the notion prohibiting discriminations.
Such examples presented during the seminar have underlined the regional mechanisms’heterogeneous aspect which hinders optimal protection of the ESCRs. The same applies to the theme mechanisms. For example, today complaints regarding exclusion from political life are admissible, while those regarding cultural life are not, even though these elements are tightly linked. (Simon Walker)
Opinion prevailed that a general mechanism would produce further coherence and would help fill the gaps.
With regard to the artificial separation between civil and political rights on the one hand and economic, social and cultural rights on the other, it was additionally perceived that in the event of a certain “repair” through the adoption of Conventions on the Elimination of all forms of Racial Discrimination (ICERD), on the Elimination of all forms of Discrimination Against Women (CEDAW) and on the Rights of the Child (CRC), each comprising economic, social and cultural rights, in addition to civil and political rights, such compensation of non-pertinent distinction shall be only partial. A uniform mechanism of communications would enable the indivisibility principle to be truly restored, thus preventing the current break-up, which is causing prejudice to the interpretation of these rights. Such clarification would have the advantage of not only providing transparency in terms of an individual’s rights, but also in terms of a State’s obligations. (Asbjorn Eide) It would also enable a legal consolidation of all the conventions relating to human rights. Already, the CEDAW Convention and the ESCR Covenant, far from being rivals and very different, can be mutually enriching and complementary. (Shanti Daïriam)
III. A general mechanism as a means for extending existing case law to all economic, social and cultural rights
A need for coherence between the various judicial proceedings with regard to economic, social and cultural rights has been stressed, considering the uncertainties weighing over these “policy” rights when referring to an obligation of means rather than result.
The existence of the European Social Charter has stimulated considerable progress :
new vocabulary (appeal, violation, defendant States, decisions, well-founded) in the ESCR field, which up until then was reserved for civil and political rights ;
new themes : education and child punishment, enlarging the workplace ;
more concise contents with respect to certain notions: State discriminations and obligations, restrictions in compliance with the Charter, etc.
Such example of the effects of the European Social Charter on national rights demonstrates the interest of international enforceability, particularly with regard to continents devoid of any regional mechanism. […] The European Social Charter Committee, however, only has declaratory power. The threat of recourse before its Committee exerts a preventive effect : legislative, ruling and judicial modifications, affecting even collective agreements, are thus handled in anticipation of possible litigation. (Régis Brillat)
There is, therefore, “without doubt a certain paradox to asserting that the establishment of a [universal] mechanism shall rival with the work of the United Nations Organization’s Specialized Agencies, such as the Unesco, the FAO, the WHO, or even the International Labour Organization, […] while further expressing the regret that generally-accepted standards are lacking within the international community, as they are the basis for defining the substance of a right, such as the right to education, the right to food, the right to health, or the right to fair and favourable working conditions.” (Olivier de Schutter)
There are numerous deficiencies at national level in the judicial coverage of the economic, social and cultural rights. In West Africa, for example, “a certain number of ESCRs can be taken to court under domestic law :
equal rights for men and women to benefit from all economic, social and cultural rights ;
the right to an equitable salary and to equal pay for equal work; the right to create associations with other persons and to join the trade union of one’s choice ;
the right to the protection of the family ;
the right to freedom of marriage ; the right to an obligatory primary education that is accessible and free to all.
Having said that, other ESCRs have remained up until now outside this scope, for example, the right to education, the right to work, the right to health, or the right to an adequate standard of living for both oneself and for one’s family. The fundamental issue consists of extending this enforceability.” (Vincent Zakane) Creating a general mechanism at universal level, which itself would enable a better understanding of previous judicial proceedings carried out in the various countries of the region and the world, would encourage the development of extensive legal proceedings to progressively remedy deficiencies. (Nathalie Mivelaz)
Furthermore, if “considerable efforts have been deployed over the past years by many African States to promote and protect human rights on their territory, […], if such efforts have enabled notable progress with respect to the civil and political rights, particularly due to the constitutionalisation of political life and to the emergence of a lawful State, they have not exactly accomplished a real development of the economic, social and cultural rights.
On the contrary, in a number of countries, we were able to witness during the 1990’s a net decline in these rights, notably due to the combined effects of globalisation, the liberalisation of national economies and the withdrawal of state funding from the production sector and from fundamental social sectors.
This situation, triggered off in part by the implementation of structural adjustment programmes concluded with financial and international monetary institutions, has declined due to the growing impoverishment of the population living in total human, economic, social, sanitary, food, environmental, individual and political insecurity. […] Considering the extent of poverty in these countries and the deplorable economic situation in which populations live, it is to be wondered whether the ESCRs’international enforceability could not form a lever to enable these States to take their fate into their own hands.
[…] Current developments on an international front, particularly due to ideas involving the IDESCR Optional Protocol question and to progress achieved in other regions of the world, such as Europe and America, combined with the potentials offered by the African system for protecting human rights, exert a positive influence on the eligibility of judicial proceedings for economic, social and cultural rights in West Africa.” (Vincent Zakane)
The Protocol should enable the ESCRs bases for constitutionality to be expanded. (Alberto Leon Zuluaga Gomez). From thereon, “this Optional Protocol could positively change the lives of people around the world. It could help those who do not have access to even basic levels of education; people whose rights to shelter are denied and violated through forced evictions ; people whose limited access to health care places their lives in danger ; people who struggle to survive without sufficient food to live on, or in areas where they have no access to clean drinking water; and people who face discrimination in accessing social security.” (Nicholas Howen)
An individual complaints’mechanism shall prompt reflection on the right to development and on companies’social responsibility. (Paul-Gérard Pougoué) Five main advantages are expected to come out of the coordinating Protocol :
justice for victims, development of legal proceedings to remedy the deficiencies of a right ;
guidance for States when seeking solutions ; reinforcing indivisibility ;
governmental and civil societies increased awareness of economic, social and cultural rights.
“In conclusion, the existence of a general universal mechanism in economic, social and cultural rights is desirable for the purpose of fundamentally creating, through dialogue and complementarity with sectoral and regional mechanisms, a safe net that is as global as possible for indissociable rights comprising human dignity.” (Didier Agbodjan)
(1) : Quotation from the High Commissioner of the United Nations Human Rights, Louise Arbour, during the Working Group meeting of 14th January 2005
(2) : Adopted in San Salvador, Salvador, on 17th Novembre 1998 during the 18th ordinary session of the General Assembly and entered into force on 16th Novembre 1999.
(3) : Cf. in addition, article by Magdalena Sepulveda “The need for an optional Protocol to the International Covenant on Economic, Social and Cultural Rights to complement the national and regional system for the protection of human rights in Latin America”, Testimony of “Key witnesses”.