Cheffi Brenner, Michel Doucin, Nantes, enero 2006
Is there a need for a mechanism to monitor implementation of recommendations issued after the examination of individual and collective communications?
The effectiveness of an international mechanism depends on its capacity, direct or indirect, to follow up the consequences of the obligations it prescribes. UN mechanisms are the target of criticism precisely because they rarely have that capacity, undermining their effectiveness. “The effectiveness of treaty committees is limited by the fact that many States do not fulfil their basic obligation to submit periodic reports.” (Eduardo Meneses and Aguibou Diallo)
Conversely, when monitoring mechanisms exist – at regional level, for example – they are criticised for generating excessive bureaucracy and for assuming an inquisitorial role towards States.
Many participants felt that a monitoring mechanism would help to guarantee the effectiveness of recommendations (I) and play a preventive role that would encourage the respect of economic, social and cultural rights (II).
I. A monitoring mechanism as a guarantee of the procedure’s effectiveness
Having a genuine power of jurisdiction is not always sufficient to ensure that judgments issued by an international body are put into effect. The experience of the European Court of Human Rights, the body that monitors implementation of the European Convention on Human Rights and Fundamental Freedoms, is instructive in this respect, since in some countries its judgments encounter lasting unwillingness from the legislature, the executive or the national courts (mention was made of a case in Belgium relating to the distinction, condemned by the Court, between legitimate and natural children). More generally, monitoring bodies that have regional jurisdiction try to make use of reasonably coercive measures like fines in the hope of ensuring that their recommendations are more often put into effect. That is also the route taken by the CJEC and the ECHR which, on completion of the current reform, should be able to make greater use of such measures than has previously been the case. (Jean Michel Bélorgey)
The risk of non-implementation of recommendations is even greater when the body has only quasi-judicial powers, as is the case with the envisaged Committee for economic, social and cultural rights. Consideration was given to the desirable characteristics of a monitoring mechanism available to a Committee adopting recommendations after examining individual or collective communications.
The first requirement was felt to be that the monitoring mechanism should enjoy a certain measure of independence from governments, since this would be decisive for its objectivity and effectiveness. In India, the Supreme Court has developed a « continuing mandamus » system whereby, after issuing a judgment, it continues to have the power to periodically monitor compliance. (Colin Gonsalves) This mechanism ensures optimum effectiveness and is a definite argument for encouraging the application of judgments.
It should also be seen as a way of supporting States in the efforts they have to make on the basis of the recommendations addressed to them, and of helping them to overcome any difficulties they may encounter in implementing recommendations.
The possibility of carrying out investigations, with the consent of the governments concerned, was also felt to be relevant. “One may consider, for example, the case of a State party to the ICESCR, where a great majority of the rural population may be living under horrific conditions, lacking adequate food, safe water, medicine and medical care – a clear case of the violation of economic, social and cultural rights. In this case, the Committee representative would visit the country to negotiate a target with the government for improving living conditions in the following manner. Final objective : the entire rural population will lead a decent life with the minimum necessary supply of food, safe water, medicine and medical care. Stages: the objective should be achieved over a span of five years, gradually in each district. Actors involved : government departments, international organisations and agencies, and NGOs.” (Yozo Yokota)
States’periodic reports should also provide a framework for regular monitoring. The proposal from the UN High Commissioner for Human Rights, issued in the context of United Nations reform, for a single all-embracing report drawing on all information from the various treaty committees and from special procedures was also considered as a balanced response to the problem of finding a form of monitoring that States would not regard as harassment.
II. Monitoring as a way of preventing the violation of rights
“There is no law without external constraint.” (Kant, cited by Jacques Fierens)
The monitoring of recommendations also has a preventive role to play insofar as it encourages States to take anticipatory measures to forestall repeated procedures and ensure that they are not repeatedly held to account.
States do not take kindly to criticism. The risk of incurring criticism for not having drawn all the consequences from a recommendation issued by an international body that has been apprised of a violation of rights (ie, for not having treated the case as revealing a situation that is unsatisfactory for a whole category of population) is often a powerful incentive for governments to take the initiative and review the policy in question. Under such circumstances, a follow-up mechanism would enable the Committee to better assume its role as a source of advice for States. (Nicolas Espejo)
Examples of changes to legislation as a result of observations made by an international body on the basis of an individual appeal were put forward during the seminar, suggesting that the Committee on Economic, Social and Cultural Rights, if it had the capacity to follow up its recommendations, could play a similar preventive role.
Any monitoring mechanism would have to be able to ensure, without being too cumbersome, that recommendations were genuinely put into effect, for otherwise the protection it was intended to provide would be inoperative.