Mamadou Badji, Nantes, janvier 2006
The deficiency of international law and the need to adopt an optional
By the end of the Nantes seminar it seems to me that there are three essential points to retain.
First of all, it appears that a diverse set of solutions found in both the Common Law system (such as in Canada) and in the Romano-Germanic system exist. This is worth noting insofar as there are certain Monist states in the Romano-Germanic countries.
This doctrine places the States in charge of three types of obligations [having ratified the International Pact in relation to economic, social and cultural rights]: the obligation to respect, protect and promote them (1). This shows the importance of the problem of applying, at the internal level, the international law of Human Rights.
According to the prevailing doctrine, it is the judicial organizational nature of a state that determines, using in-house standards, how an international treaty in relation to Human Rights is applied. When a state ratifies a treaty, its dispositions are not automatically integrated in the internal judicial order. The integration or non-integration of a treaty depends on the nature of the judicial system. In the so-called “Monist” system, the State’s ratification of a treaty integrates the treaty’s disposition into a national legislation.
Consequently, the treaty becomes applicable. If there is a contradiction between the two standards, the internal law must be modified to conform to the international law. French experience, for instance, has shown that the French judge, was not always inclined to this method, and a long resistance preceded this dominance of international law over the domestic. On the other hand, in the system referred to as “dualistic”, international and national law form two distinct systems. It seems, in this instance, that in this type of system the treaty must be incorporated into the national legislation before its application under the word of law format.
Senegal, for example, belongs to the Monist tradition. And, in fact, the international methods of Human Rights are an integral part of the positive Senegalese Rights and the international obligations prevail over national laws. All of the international institutions to which Senegal belongs, especially the International Covenant on economic, social and cultural rights3, may be called upon before the judicial and tribunal authorities who will apply them using the same method as national law (3).
That being the case, beyond the different solutions noted at the time of the seminary, one should not stop at the awareness that the common law system is more inquisitory and the Romano-Germanic system more accusatory, but that in adopting an optional protocol, one might arrive at the same objective which is the justifiability of economic, social and cultural rights, however not by a compulsory sanction but by their effectives in national law.
Elsewhere there exists, especially in Southern States, countries that subscribe to the claim of Romano-Germanic legacy but, even while often ratifying most international treaties, they hide behind economic or financial difficulties in such a way as to not have to comply with the obligations of which they are incumbents by the ratification of the treaties themselves.
The fundamental principle governing the application, on a national level, of an international treaty in relation to Human Rights, depends on the postulate to which “the States (once they are a part of an international treaty) are supposed to submit to the judicial ordinance in which they assume, for the common good, different obligations that do not depend on the other States, but on all the individuals placed under their jurisdiction” (4).
This opinion is not greatly shared, especially among the poorer countries where certain States assuming, in their legislation and in their practice, a good apprehension of the state-controlled obligations of respect, protection of Human Rights, criticize the principle itself of the universality of enacted norms in this domain. As a result comes a situation of great judicial uncertainty : in fact, if the norms (5) (as defined by international law, notably in terms of the protection of economic, social and cultural rights) are made meaningless by the national judicial schedule, all ways of pertinent appeals, susceptible in rendering the public powers accountable for their actions in face of wronged groups or individuals, become inoperative. Senegal is experiencing this in terms of social security. Social security must be made distinct from social protection which, in addition to the branches that cover social security, also touch other domains such as lack of safety, poverty and famine, gender approach as regards womens’access to social security. If the Senegalese social security law is inspired by the whole of regulatory and social dispositions made to fight poverty or to protect the individual against social risks, it does not alter or lessen the fact that social security suffers from a régime of a more theoretical than real protection and from very limited accountability.
Thus, despite the consecration of the right to social security by the Constitution, Senegalese laws supply insufficient coverage as much for the people as for the benefits. It is a system that is characterized by the exclusion of almost the entire population and by sexual discrimination. The efficiency of a social security system resides not only in the number of protected people, but also in the covered social risks, as well as the standards and modalities of protection. In this report, it is possible to note that the Senegalese form of social security is not very efficient: in fact, the social coverage only concerns a minute part of the population, such as civil servants, salaried employees and their families, which only represents 14 % of the social coverage and 5 % of the active population (6). In addition, not only does the number of benefits remain quite limited, but the informal sector (7) is not protected. Now, this section occupies an important fringe of the population : not only are many artisans represented, but women also greatly occupy this sector. These reports clearly bring to the surface the serious distortions between the objectives of the ILO as regards the social security (8) to which Senegal subscribed and how it is implemented.
Despite these constitutional and legislative tendencies, sexual discrimination exists and condemns a large number of women to exclusion and marginalization. It is, for instance, estimated that only 20 % of women are salaried employees. In terms of social security, social discriminations originate out of the paternal power. As a result, married women are obliged to make appeals to men before having access to the benefits and services offered by certain institutions. Indeed, the access for men and women to the same rights and chances is consecrated by convention No. 158 (1981) of the ILO, relative to workers who have familial responsibilities, however in practice, the respect for a minimum standard is rarely observed. Actually, the commission of experts of the ILO did not forget, in its recommendations, to attract the attention of the public powers to the insufficiencies of the Senegalese right to social security and to the improvements necessary in order to conform to the norms of international law. It seems that upon analysis the accountability of law in terms of social security remains, in this context, very limited.
The limits of the justifiability to the rights for social security come in part from the problem posed by the preservation of acquired laws as well as from the guaranteed benefits. Certain clauses acknowledge the principle of law as an effective recourse without, however, always specifying the methods of recourse which must be offered. As a result, the interpretation taken from article 70 of the ILO agreement that the right to appeal is based on a decision invested with the nature of the authority of that being judged. Moreover, the concept of recourse implies a ruling by an independent authority from the administrative authority that first rendered the decision. The simple right to ask for a reexamination by this authority is not enough to constitute a procedure for recourse. In following conventions No. 128 and 168 of the ILO, procedures must be planned in order to allow the person making the claim to be represented or aided by a qualified individual of his or her choice or by a delegate of a representative organization for protected people. Still, these conventions do not define any procedures which would allow one to settle in the adopted manner of the courts the rights involved. The only adopted procedure until now is the ILO one, which tends to formulate direct demands to the States’members so that they guarantee the benefits. There are undeniable limits which raise the problematic of the accountability of economic, social and cultural rights.
Because the possibilities for recourse are limited on a national level, the existence of an appeal method on an international level would only encourage national justice to be more effective in this domain. To be sure, the existence of communication procedure opened to individuals constitutes a good way to reinforce the power of the interested parties, as well as the awareness of their laws, and as a way to encourage the participating States to release themselves from their obligations. It is first and foremost the participating States’responsibility, in fact, to guarantee (notably by means of an independent judiciary power) the respect of international law as well as the application of pertinent rules and laws. But the implementation of an optional protocol may constitute an important supplement.
What’s more (this is important), is that the adoption of an optional protocol would fill a void insofar as those responsible could address the Committee to secure their claims, which is presently not the case. As a result there would be a subsidiary organism that could assist in voicing the violations suffered by individuals. They could also benefit from the help of the ONG, through collective recourse, which would create an important upheaval in judicial order.
Finally, the control of the state of the application of this Covenant would be reinforced by the mechanism initiated by the optional protocol. In effect, this one will prevail, after adoption, at least morally. By examining the alleged violations by the subsidiary organism, the Committee will be able to control the applicability of the Covenant. The Committee should recognize the elements given by the States but this should be realized not in abstracto, but in concreto, thus permitting validation of the will and good faith of the concerned State.
It is important to bear in mind that there is a minimum standard of values applicable universally, commonly called “soft law”. If this minimum is not respected, one strays from the respect of the obligations contracted in the name of ICESR. Thus, the respect of the right to life is consecrated by numerous international institutions which define the minimum standard and, hence, no justification can excuse its violation. It is easy, therefore, when the commitment is sincere, to reach a situation where the minimum standard is respected. The Committee should define the minimum of rules required when a State subscribes to the Covenant, for, if this minimum is left to be defined by the States, the risk of disparities is great and these would obfuscate the meaning of the content of the Covenant. So, to achieve proper realization, the Committee could follow the example of the Unesco work concerning the Declaration on Bioethics and Human Rights. This work takes into consideration the Anglo-Saxon tendencies, the Romano-Germanic ones and also those concerning the Southern countries and especially the tendencies coming from asian countries where the right to life has a different connotation. This work shows that one is not without solutions even for sensitive subjects. The minimum of values, there fore, should be established by the Committee, and the States that are below this minimum standard should be condemned.
For these three reasons, it is thus necessary that the optional protocol come to light. Without it, law remains theoretical, as the violations of Human Rights – notably economic, social and cultural rights – would stay linked to the nexus of conditions. Therefore, the Nantes seminar has congealed on a diagnosis of the inadequacy of international law, especially as it concerns economic, social and cultural rights if and when the optional protocol is not adopted. It has also elucidated the current difficulties as regards the demands of possible authors of communication to achieve their demands. Finally, it has thrown light on the possible advances and solutions which would undeniably permit the progression of law.
(Translated from the French)
(1) : Henry Shue, The protection of Social and Economic Rights : A comparative Study, note 21, p.10. Position defended by the experts of the UN. See for example A. Eide, “Realization of social and Economic Rights and Minimum Threshold Approach» (1989) 10 Human Rights L.J.35, p.37.
(2) : Ratified by Senegal on the 13th of February 1978.
(3) : Mamadou Badji, “Protection et justiciabilité des droits économiques, sociaux et culturels: l’exemple du droit sénégalais de la sécurité sociale » , Séminaire d’experts de haut niveau sur les droits économiques, sociaux et culturels, Nantes du 5 au 7 septembre 2005.
(4) : Interamerican Court of Human Rights. Consultative advice OC-2/82 “Effect of reservations issued on the application of the American Convention of Human Rights (art.74 and 75), series A, No.2, paragraph 2a.
(5) : The universality of norms rests on the postulate that they are applicable for the States of which the level of development as well as the judicial techniques differ notably, the method constituting elaboration of norms flexible enough to be adoptable to diverse countries.
(6) : According to World Bank Development Indicators 2003, the total active population was 4 million in 1998, women representing 43 % of the active population ; this compared to 42 % in 1980.
(7) : In the sense of the Bureau International du travail, it is about the non-structured sector, consisting of small units of production and distribution of goods and services situated in urban zones ; those units belong to independent workers who sometimes employ a familial help, possibly the same paid employees or apprentices.
(8) : According to art.2 and 3 of the ILO constitution, it is up to the State to decide about specific modalities by which it guarantees the right to social security in its national legislation. Even if it has the right to take “temporary derogations, the State must show positively in the national legislation the obligations due to its adhesion to the international treaty”.