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Cheffi Brenner, , Nantes, January 2006

Which body would be responsible for receiving communications?

Lifting taboos, the seminar also raised the politically charged issue of whether the new function of processing collective and individual communications should be given to the existing Committee on Economic, Social and Cultural Rights.

Among the arguments against, two were stressed: 1) the committee’s institutional – and therefore political – weakness, because, unlike the other committees, it was established after the adoption of the treaty it is in charge of monitoring and by the Economic and Social Council rather than the United Nations General Assembly ; and 2) the limited technical competence of some members, compared with other committees, which brings with it persistent suspicion of politicisation.

The range of answers given to these questions relating to the committee’s status (I) and membership (II) was interesting in itself.

I. A status that can change

The adoption mechanism of the protocol should resolve ipso facto the problem of the lesser legitimacy of the Committee on Economic, Social and Cultural Rights in relation to its counterparts. The United Nations General Assembly will adopt the new treaty and name and thus mandate the body in charge of receiving communications.

There were nevertheless voices in favour of establishing a new committee, separate from the existing one. They were answered by participants who consider that the analysis of individual and collective communications would gain from building on the work of the current committee and its general and specific comments, which form an embryonic case law that needs to be expanded. “While the committee interprets ESCRs in a fairly abstract way now, working on concrete cases will force it to take a more pragmatic approach”. (Virginia Bras-Gomez). “It is the body best able to take charge of the communications procedure, because of the experience it has already acquired from examining periodic reports”. (Yozo Yokota, Simon Walker) “The protocol will give the committee’s work more consistency and legitimacy.” (Nicalos Espejo) “The other committees perform both tasks, as do some national tribunals: in Belgium the jurisdiction that deals with the ICESCR (which is justiciable) assesses the objective aspect of the dispute (the norm itself) and its subjective aspect, on the basis of concrete situations.” (Jacques Fierens)

The issue of the reform of all the treaty body committees, initiated by the High Commissioner, naturally came into the debate. Some participants advocated a forwardlooking vision that would start by merging the Committee on Economic, Social and Cultural Rights with the Human Rights Committee, thus re-establishing the indivisibility of human rights at the decision-making level of the supreme quasi-judicial body.

II. Membership that must change

Some participants were of the view that the new competence would challenge the current committee to change.

Having a communications procedure would improve the committee’s expertise in legal analysis and interpretation of the treaties and ensure greater independence of its members […]. This does not mean that the tribunal should consist only of lawyers – strong knowledge of human rights also requires other fields of expertise such as the social sciences […]. Martin Scheinin referred to Article 29 Paragraph 2 of the ICCPR, according to which each State may nominate two candidates for election, even though only one may be elected, as an idea for diversifying the committee’s membership, particularly to improve gender representativity.

To avoid political interference, some participants insisted on the need to recruit members who are genuinely independent and to define a strict set of internal ethical rules (Emmanuel Victor Oware Dankwa). This opinion was widely shared, with some exceptions : “The committee receiving individual communications must not consist solely of lawyers, but should also be open to representatives of civil society, including women”. (Bruce Porter)

Improving the recruitment process was seen as a way to improve membership. States should now be asked to nominate two candidates who are representative in terms of gender and of expertise in both civil and political rights and economic and social rights (1). This approach would avoid a monopoly of lawyers. Recruitment by audition was also suggested. (Martin Scheinin)

“The capacity of the committee members to examine with the requisite experience complex matters such as the appropriateness of health or education policies or strategies to reduce poverty or malnutrition has recently been called into question (2). This criticism […] overlooks the experience acquired by the committee over the past 20 years from the examination of periodic country reports and the committee’s constant concern to work with the specialised agencies of the United Nations such as Unesco, WHO, FAO and the ILO, to develop the standards of the Convenant”. (Olivier de Schutter)

The debate is open.

Notes :

(1) : Notably, Article 28 of the CCPR requires from HRC members “recognized competence in the field of human rights” (not “civil and political rights”).

(2) : M.J.Dennis and D.P. Stewart, “Justiciability of Economic, Social and Cultural Rights : Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing and Health ?” pp.506-507.