Cheffi Brenner, Michel Doucin, Nantes, January 2006
By possibly giving private organisations the right to represent or assist communication carriers, would this not create a destabilising political power for political authorities ?
The question regarding the role of civil societies’representative organisations within a democracy’s operating process is a subject of debate that is beginning to appear within democratic institutions themselves. It is the question of their legitimacy that is the core of the controversy, as it would appear to be less than that of other political and social institutions, seeing as associations, unions, foundations and NGOs are not established as a result of a transparent electoral process. (Some respond that the States themselves are confronted with problems of democratic deficiency, which is reflected in their judicial operations.) (Nicolas Espejo)
From that point forward, depending on the response given above, worry or calmness shall be expressed with regard to the possible political dimension of the role to be played by private organisations who shall be assisting persons presenting communications to a committee in charge of receiving and investigating them in order to verify that States comply with their obligations in accordance with the commitments taken when ratifying the Covenant on Economic, Social and Cultural Rights, together with its Protocol Additional.
Discussions on the matter have demonstrated in a number of cases that support or relay from private bodies shall provide the only means for victims to have their claims purposefully defended (I). Guarantees exist, however, to ensure that this role does not gain too much importance politically in view of exerting destabilising effects on institutions considered as the most legitimate (II).
I. The right given to private organisations to represent or assist communication carriers as an essential means for efficiently protecting economic, social and cultural rights
Concerning violations of rights aiming at defending victims against social, economic and cultural exclusion, it first seems rather ludicrous to imagine that most of the victims, themselves suffering from poverty, ill health and/or educational deficiency, can alone confront the network of national procedures (with a multitude of levels), then regional and finally international/universal procedures (not excluding sectoral mechanisms), in search of those procedures likely to identify their good right. The more vulnerable victims thus have rarely access to these procedures. (Lucie Lamarche, Eric Tistounet)
This is why “economic, social and cultural rights are to be envisaged, under certain conditions and in a collective manner. (Arto Kosonen) Indeed, the collective way could prove to be the appropriate means for defending individual interests, using the example of situations and rights of native populations. Other regional systems, such as the African example, grant importance to groups, just as the European Social Charter enables collective claims on NGO communications.” (Didier Agbodjan) “Collective claims can play a major part, particularly in societies where groups have an important role, as is the case with native populations, for example.” (Giorgio Malinverni)
“Claims from the most disadvantaged groups often relate to positive measures and have resource implications. If the optional protocol were ever to limit the adjudication of positive rights claims of that sort, it would exclude the most disadvantaged groups from the process and undermine significant advances that have been made at the domestic and regional level. If people with disabilities, because workplaces or housing has been designed as if they did not exist, require positive measures involving resource allocation, surely that is no reason to give their rights to work or to housing any less of a hearing, or to treat the need for an effective remedy in these cases with any lower level of concern. The typology of obligations was developed in General Comments to enhance the protection of Covenant rights by elucidating different dimensions of the right, not to provide a basis for denying effective remedies to particular groups or claims.” (Bruce Porter)
The NGOs attending were able to provide many examples of the necessary roles held by councils or spokespersons at national and regional levels, sometimes even before certain United Nations convention committees for the purpose of assisting underprivileged populations to identify their rights. For example, in Nicaragua, the Centro Nicaraguense de Derechos Humanos (CENIDH) [Nicaragua Centre for Human Rights] has succeeded in legally obtaining a blockage on water costs for several years, or even obtaining the recognition of ownership rights on land cultivated by farmers for many years, who would otherwise have been evicted.
Once the socioeconomic and cultural context has been necessarily understood, in which, for example, an allegation of economic, social and cultural rights violation is registered, intervention by third party organisations shall incidentally be inevitable for the purpose of providing complementary information to a committee, which, failing that, would haveserious difficulties in evaluating matters. “In many cases, the adjudicating body will need to consider the “polycentric » nature of social rights, by inquiring beyond the particular circumstances presented by the claimant, to consider the other rights and needs at stake, particularly in resource allocation decisions. So it will need to be accessible to groups that may not have the means to participate, and it will need to be able to proactively seek out interventions from groups in order to hear additional perspectives and appreciate all dimensions of a claim.” (Bruce Porter)
There would, on the other hand, be a certain paradox in keeping associations, unions, organised groups and NGOs at a distance during all new procedures aiming at clarifying and better satisfying the economic, social and cultural rights for vulnerable populations, since the general evolution for international institutions has, for the past two decades, been to recognise the growing role to assist the most destitute in terms of expression. Thus, whether it is the elaboration or implementation mechanisms of strategic Frameworks to fight against poverty or the Heavily Indebted Poor Countries’Initiative, or even methods to fight against corruption, participation by non-governmental organizations is strongly requested by the governments concerned, the sponsors and intergovernmental economic and financial institutions. A legitimacy, based on their capacity to express needs and expectations of those excluded from traditional representation systems, on the capacity to secure relations of trust with the “base organizations”, on a certain professional technical know-how and on recognition by the media (and, consequently, public opinion), is currently giving NGOs more and more recognition. (Michel Doucin)
Should it not be feared that the Committee will receive a multitude of communications, presented with the support of NGOs, from thousands – if not millions or tens of millions – of persons having suffered violations of elementary rights ? When the Committee of the European Social Charter initiated the possibility to submit collective communications, an explosion of requests did not actually happen – on the contrary (just 32 to date) – thus many speakers realised that such fear was quite exaggerated. Conversely, we could imagine that intervention by NGOs would enable the gathering of a large number of potential complainants within a same proceeding, thus benefiting the rationalisation of the new procedures operations.
II. Existence of guarantees to prevent such possibility from constituting a destabilising factor for political powers
In the sector regarding the fight against poverty, recent developments have given an important representative power to associations and NGOs with regard to persons handicapped by insufficient education keeping them away from public life. This has not, however, given rise to major political problems, the more traditional political institutions having understood that development of the civil society was accompanied by the maturing process of all modern political systems.
Indeed, “good governing largely depends upon the legitimacy of governments and their sense of responsibility towards their populations. […] Unfortunately, in a good number of West African countries, the persons governing do not benefit from a sufficiently legitimate democracy and do not feel responsible towards citizens. Often exclusions of certain groups from political life ensues, then refusal to access resources, which can lead to frequent political tensions, even demonstrations and the challenging of matters at stake, thus causing rebellions, such as shown through conflicts in Liberia, Sierra Leone and more recently in the Côte d’Ivoire. Such situations are at the base of political instability, known to certain sub-region countries and seriously curbing the progressive fulfilment of economic, social and cultural rights.” (M. Vincent Zakane) Thus the importance to assist those socially excluded with their relevant procedures.
The inevitable reference lies in the Tocqueville text where “Democracy in America” continues to evoke interest. “Feelings and ideas are renewed, the heart expands and the human mind develops, all this only through reciprocal action by men and women, each and every one. […] Such action is almost nil in democratic countries. It is thus necessary to create it artificially. And that is what associations alone can do. […] In democratic countries, the science of association is the science at the forefront : progress of all the others depends on the progress of that particular one. (1) […] Freedom of association has become a necessary guarantee against tyranny by the majority. (2) […] In countries where associations are free, secret societies remain unknown.” (3) And even if activity by the NGOs creates an incidence on political life, “the freedom of associations in political terms is not as dangerous for public peace and quiet as one might think, and […] it could only occur after having undermined the State for a while, strengthened by the association. (4) This question also refers to the interrogation regarding the situation of the associative right in each country, particularly whether it is guaranteed or not. (Michel Doucin)
Is it possible to admit from now on that the procedure, which could result from the Protocol Additional, allows third party groups to represent victims ? “The argument for a destabilising politicization by these private bodies can be used by certain States to bypass the claim which they have been sent. The best way to avoid this stumbling block or to minimise the extent shall be to guarantee that it is indeed the victim’s voice that is being expressed. Finally, examination of the communications shall be done within the framework of the contradictory procedures before a board of experts capable of understanding the basis of the communications, thus comprising an additional guarantee against the risk of destabilising the legitimate authorities.” (Philippe Texier)
The initiatives taken by a large number of States aiming at consolidating judicial power, hardly see the civil society as a rival, rather as a partner. “Private bodies collaborate with the political authorities, thus contributing to establishing the latter’s legitimacy. In Madagascar, for example, actions identified with regard to reform (of the justice) affect not only the Ministry of Justice and other ministerial departments, but also the bodies and organizations of the civil society, under a global and systemic approach, to ensure better coordination and a synergy of actions. In the final stages, reform aims at restoring a lawful State and a well-governed society, as well as increasing the trust of the population in its legal system by making it more accessible, more human and much faster. […] The actions aim at reinforcing capacities of the NGOs working in the justice sector and at establishing dialogue mechanisms between the government and the civil society (… with the) recent establishment, for the first time in Madagascar, of the civil society Platform and support […] to its organization […]. […] Defence of a victim’s or group of victims rights through a strong civil society organization […] truly plays its role of a national system pillar for integrity. (Bakolalao Ramanandraibe)
A citizen of a country where threat of famine had been announced by the meteorological department and by international aid agencies, who believes that his government failed to define the policies in accordance with the situation, and who shall have summoned the latter before the national court, though resulting in a nonsuit, would he be able to make a claim to the UN committee to bring charges against his particular State for failure to conform with its responsibilities to respect, protect and satisfy the right to food? Without doubt, yes, but the government of the country shall have all the necessary time to prove, for example, that the structural adjustment, which was imposed by the IFIs, dislocated the Ministry of Agriculture, that its calls for international help to destroy swarms of locusts when they were forming went unheard, that the lowering of customs duties imposed during the last round of negotiations known as “trade and development » deprived it of budgetary capacities to respond, etc. And if the complainant, who shall be assisted by lawyers from an international NGO, seeks to prove that, for example, the State was, at the same time, engaged in costly armament policies, or in organising major sports events, thus failing to assume its fundamental responsibilities, the Committee shall certainly be wise enough to consider that its competence shall end on the doorstep of the terrain leading to the country’s domestic political life.
If globalization is hard to monitore, particularly in its neo-liberal aspect (Jean Marc Ayrault), a factor that accelerates the recognition of the NGOs role in the building of a lawful state is: becoming aware of the fact that “other private bodies currently exert authority over the rights that require counterbalancing. (Saadia Belmir). In many countries, questions are raised with a certain determination as to the extent of the notion of sovereignty in the face of multinational enterprises, or even movements for relocation. The thought-provoking confrontation on the enforceability of economic, social and cultural rights shall imply seeking new tracks likely to bring elements of response to these questions. We observe a simultaneous development of employers, unions and the NGOs in terms of identifying the role and limits of companies in the context of the protection and respect of human rights. The success of the United Nations Secretary General’s initiative, Global Compact, to which several thousand of companies – 350 in France – and NGOs have adhered, is a definite sign.” (Michel Doucin)
The right given to private bodies to participate in judicial or quasi-judicial procedures in their capacity as representatives of the victims, controlled by clear procedural provisions, must not from that time on, particularly in a global context where new, very powerful actors have come on stage, be seen as causing a threat to political authorities, insofar as such bodies participate, against all odds, in unison with the latter for improving implementation of the rights protected by the States.
One question, complementary to the previous one, can find its response in the procedural rules : that of the possible exploitation of victims. The risk that complaints are deposited without the knowledge of the victim is indeed real and has been verified by Unesco. Such introductions had, of course, a political dimension. (Arto Kosonen) “That the groups actually talk on behalf of the victims, and that the latter are not exploited, must remain an essential aspect. In order to do so, examining the causality link between denounced violations, together with the outcome for victims, must be a focal point.” (Philippe Texier)
In the interest of victims, the possibility of complaints being presented by groups of persons – including NGOs – is greeted with a positive general opinion, on the condition that this be done with their consent, though exceptionally not, i.e. in such cases where proof can be provided that it was necessary, but that the victims were genuinely prevented from doing so due to suffering grave violations. Thus, in the CEDAW procedure, consent by a victim is required for enabling a communication to be considered, except in cases where it can be proved that there was no possibility to obtain such consent. (Shanti Daïriam) The CERD accepts to receive individual and collective communications. In this last case, the condition required is either the existence of a direct collective prejudice or the mandate from a group of victims given to an organization. (Régis de Gouttes)
In its report presented in 1997, the Economic, Social and Cultural Rights Committee proposed that the Optional Protocol recognises the competence of the Committee to “receive and examine communications coming from any individual or group under its jurisdiction in accordance with the provisions of this Protocol”.
The question is thus raised to know whether, beyond individuals who claim to be honest victims of a violation of the Covenant’s rights, (whether they be a natural person or, where appropriate, an organisation, having or not legal character) it is necessary to admit that certain organisations, having as a social objective to defend human rights or having a recognised competence in an area covered by the Covenant, can introduce a communication alleging a violation of the Covenant, without having any mandate from the identified victims, i.e. acting in their own name rather that in the name of direct victims, the organizations of which would assume representation.
The Optional Protocol to the Convention on the Elimination of all forms of Discrimination Against Women, adopted on 6 October 1999, relaxes conditions under which the victims of the alleged violation(s) can be represented, allowing at subsidiary level – i.e. where direct victims have no possibility of introducing a communication themselves, or even to give mandate to a representative to act on their behalf – a substitution of the communications author in the case of direct victims.
A same solution is adopted by the Human Rights Committee in its Ruling Procedure. In its 1977 report, the Committee had only estimated having to recommend “that the right to present a complaint be also granted to individuals or to groups acting on behalf of the presumed victims”, while observing that “this wording should be interpreted as only applying to individuals and to groups who, in the opinion of the Committee, act after having informed the presumed victim(s) and having obtained its (their) approval.”
An intermediary solution would consist of admitting that direct victims of denounced violations may not be able to act themselves in view of introducing a communication, and may even find themselves incapable of agreeing to a representation. In the event of such a situation, an “indirect” victim could substitute himself as being a direct victim, thus introducing a communication alleging a violation of their rights, including not having obtained their consent to this effect. Nonetheless, introduction of a communication alleging a violation of the rights identified by the Covenant in the capacity of other persons than the author of the communication shall remain impossible as long as the direct victims are unable to provide their consent. In this sense, the “direct » victims remain, in principle, responsible for the decision to make a complaint, or not, regarding the violation of which they are victim: although representation conditions have been relaxed, all forms of actio popularis remain excluded.
This intermediary solution, however, carries a certain number of uncertainties. First of all, concerning the conditions under which the author of a communication alleging attack against the rights of others shall have to comply, should the direct victim not have been in a position to agree to the introduction of a communication in his name.
Then the actual notion of incapacity for direct victims remains unclear. It appears certain that situations of generalised violence or a physical impossibility to have access to the victims (for example, due to the depriving of freedom of which they are subject without the possibility of entering into contact with them) can indeed justify that we do without their explicit consent. On a more delicate front, however, is the question to find out whether consent by the victim can be demanded even if the latter has renounced to the right that the Covenant grants, for example, in compensation for finances, even though the conditions having given rise to the attack against his right subsist. In the context of the International Covenant on Economic, Social and Cultural Rights, it is this type of situation that shall be presented most often: can one do without, for example, the consent of workers who work in conditions that are dangerous for their health, but who receive, in their opinion, payment in compensation for such risk ? Considering the risks involved in situations like that where there is demand for consent by an individual to be represented in the context of an individual communication, it would seem necessary to clarify the conditions set for introducing a communication alleging violation of the rights against others without his consent.
Should these conditions appear to be too restrictive, particularly on the assumption that direct victims of alleged violations would be tempted to renounce to the introduction of an individual communication, considering the compensation proposed, it would be necessary to examine the possibility of individual communications being introduced via certain organizations in the interest of a satisfactory application of the International Covenant on Economic, Social and Cultural Rights by all State Parties having accepted the Optional Protocol. It could be reserved for certain non-governmental organizations judged sufficiently representative, or having a recognised competence in the areas covered by the International Covenant on Economic, Social and Cultural Rights. This would also make it possible to choose among the organizations, which would have the advantage of preserving the Economic, Social and Cultural Rights Committee from the risk of congestion through abusive or insufficiently informed communications, each organization having the task, within the framework of such mechanism, to preserve its serious reputation and its credibility. (Olivier de Schutter)
However, some point out that a satisfactory treatment of individual communications would suppose an enquiry authority, (Emmanuel Decaux) which raises the objection that the ESCR Committee could encounter difficulties in fulfilling enquiries without approval from the States: they would not have any legal basis (Sergey Chumarev).
(1) : Alexis de Tocqueville, “Democracy in America” Vol. III – 1835 – Calmann Lévy, 1888 p. 186 & 188
(2) : Alexis de Tocqueville, Idem Vol. II p. 38
(3) : Alexis de Tocqueville, Ibidem, Vol. II p. 39
(4) : Alexis de Tocqueville, Ibidem, Vol. III p. 201