Emmanuel Decaux, Nantes, janvier 2006
Justiciability and cooperation
The 1993 Vienna Declaration and Programme of Action states that “the World Conference on Human Rights encourages the Commission on Human Rights, in cooperation with the Committee on Economic, Social and Cultural Rights, to continue the examination of optional protocols to the International Covenant on Economic, Social and Cultural Rights” (1). The Committee on Economic, Social and Cultural Rights fulfilled its mission in 1997 when it submitted a preliminary draft optional protocol ; (2) since then the issue has lain dormant before the Commission on Human Rights despite all efforts to the contrary, including within national institutions like the Commission Nationale Consultative des Droits de l’Homme (National Consultative Commission on Human Rights – CNCDH) in France.
At a time when voices with backing at the highest level of authority are questioning the “credibility » and legitimacy of the Commission on Human Rights (3) – buried even before it has been replaced – we may look on the recent upsurge of activity around the optional protocol with bitter irony. Ten years after the World Conference, the Commission on Human Rights has at last set up its working group to consider “options”. Having taken part with Doudou Diène and Jean Ziegler in a panel at the second session of the working group in January 2005, I was able to see for myself the interest, sharpness and liveliness of the discussions, led by Catarina de Albuquerque with tact and rigour in equal measure. This determination to confront the problems head on, including by getting to grips with the political issues, is a key to success. The same applies to the parallel technical discussions, which help to break down difficulties by defusing explosive issues beforehand at informal seminars, like the particularly stimulating one organised on France’s behalf by Ambassador Michel Doucin in Nantes last September.
The seminar brought together experts and diplomats from all over the world who do not necessarily share the same opinions on a wide range of subjects. I found it particularly positive because, starting from different, substantiated viewpoints, it enabled the participants, if not to achieve a consensus, then at least to establish a common and non-ideological critical approach to a number of key issues. Essentially, there are three of them :
improving the effectiveness of human rights as a whole, enhanced by the quasi-justiciability of economic, social and cultural rights ;
the scope of the possible argument of insufficient international cooperation ;
and the social audit function that a committee xamining individual communications could fulfil.
States need to take the indivisible and universal nature of human rights seriously
If they are to be more than mere words, they must be made effective, ie, applied in practice. It is time to move beyond the false symmetry of the two Covenants, which is mainly ideological and a product of the Cold War, and bring them up to date. The situation is clear : of the seven reference instruments that provide for the creation of a monitoring committee, five now allow for individual communications, either because such a provision was made from the outset, as in the Additional Protocol to the International Covenant on Civil and Political Rights, the Declaration on Article 11 of the Convention on the Elimination of Racial Discrimination (CERD), the Declaration on Article 22 of the Convention against Torture and the Declaration on Article 77 of the Convention on the Protection of the Rights of Migrant Workers, or through a new additional protocol, as in the case of the Convention on the Elimination of Discrimination against Women (CEDAW). The only instruments still not to have such a mechanism are the Convention on the Rights of the Child and the International Covenant on Economic, Social and Cultural Rights.
In both cases, the issue of the justiciability of rights is put forward to explain the discrepancy. However, it remains a subjective matter, as can be seen in France from the diverging interpretations of the Conseil d’Etat and the Court of Cassation as to whether the Convention on the Rights of the Child is self-executing. The reasoning could be reversed, by considering that the notions of “fair trial » or “degrading treatment » are just as vague as many social rights, whereas the Covenant contains highly specific obligations, in particular with regard to the right to education. But even admitting the criticism, it is the very fact of their practical application by States and their interpretation by the courts that gives these vague notions substance and consistency. In other words, it is not lack of precision that prevents justiciability, it is case law that provides the construction. But give a dog a bad name and hang him, as the saying goes.
Another recurrent argument is the “cost » of economic and social rights. Again, it is easy to say that the proper administration of justice also comes at a price, whereas the Covenant contains a set of negative obligations, such as those concerning freedom of association, that come at no inherent cost. Much more so, if effective compliance with the principle of non-discrimination entails additional social charges, it is difficult to see how that could justify deferring full equality between men and women or the fight against racial or religious discrimination. All human rights have a cost as soon as they involve more than just negative obligations on public authorities – in the form of non-interference, or authority’s non-involvement where the enjoyment of rights is concerned – and create positive obligations that cannot be reduced to mere entitlements, especially when the matter in hand concerns not only respecting and protecting but also asserting humanrights. This diversified understanding of human rights, resulting from the work of the United Nations Sub-Commission on Human Rights, especially the pioneering reports of Danilo Turk and Asbjörn Eide, concerns all human rights.
In this respect the closer relationship between civil and political rights and social rights, already to be found in the case law of the European Court of Human Rights, (4) should be equally valid in the UN framework, where universality and indivisibility must go hand in hand. The Human Rights Committee, through Article 26 of the International Covenant on Civil and Political Rights, may have paved the way with substantive case law relating to discrimination, as illustrated by the case of Gueye et al v. France (5). However, this should not be used as an argument against an optional protocol to the International Covenant on Economic, Social and Cultural Rights for two reasons. First, at a technical level regarding admissibility, the lis alibi pendens rule, and more generally the via electa principle prevent parallel proceedings, including with regard to regional systems. Second, and more importantly, a direct approach to economic, social and cultural rights is ultimately just as necessary as indirect case law via the circuitous route of non-discrimination. This twin illumination is bound to enhance cross-interpretation of the two Covenants. Conversely, there should be no fear that the Committee on Economic, Social and Cultural Rights will avail itself of Article 1, common to both Covenants, to encroach on the political sphere that the Human Rights Committee has wisely managed to avoid for almost twenty years with regard to the principle of self-determination.
Nevertheless, the International Covenant on Economic, Social and Cultural Rights undeniably contains features that may be seen as weaknesses.
The key is simply to convert them into strengths, as the Committee has shown itself so well able to do by turning its lack of legal foundation in the Covenant into a source of flexibility and dynamism in comparison with other bodies shackled by the rules governing their status. It is from this standpoint that the issue of international cooperation, something of a millstone in preliminary work, should be approached. As Article 2.1 says: “Each State Party to the present Covenant undertakes to take steps, individually and throug international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” The formulation, with its stack of qualifying phrases, in complex and the Committee itself had occasion to give a first interpretation of it in its General Comment.
The States party may be tempted to put forward their “needs » or their claims with regard to cooperation in order to put off their own commitments. But human rights are a primary responsibility of the State concerned, which is also alone in being able to introduce the required legislation. Article 2.3 takes specific account of the situation of “developing countries » in relation to the rights accorded to non-nationals. Conversely, there is nothing in the text that would allow a State to put off implementing the Covenant as a whole because of a lack of international cooperation, whether due to international sanctions, a structural adjustment policy or sheer negligence.
But although Article 2.1 rules out the all or nothing idea, it allows for progressive achievement “to the maximum of […] available resources”. This requirement applies first to the State, which may not sacrifice human rights when choosing national priorities but must also be capable of mobilising international cooperation, “especially economic and technical”. The State therefore has an obligation of means, both in its own action and in seeking international assistance. Likewise, other specific provisions of the Covenant seem to create a form of collective responsibility, such as Article 11.2, which mentions measures against hunger taken “individually and through international co-operation”, and, more vaguely, Article 15.4, which mentions “the encouragement and development of international contacts and co-operation in the scientific and cultural fields”. At this point a problem may arise as to the locus of States’collective responsibility, or even the indirect responsibility of international organisations through programmes like the World Food Programme. The Committee has no qualms about questioning States party on their cooperation and development aid policies, but the general and political approach to the examination of reports has to be distinguished from the specific procedure for examining communications, whether relating to admissibility, causality or the locus of responsibility.
Rather than making cooperation a preliminary to a State’s respect of its own citizens’human rights, through a sort of action for redress against third countries or the “international community» as a whole, international cooperation should be seen as a second safety net. The Covenant does not treat international cooperation in terms that make it another Party’s responsibility by a sort of ricochet effect, or even grounds for exemption on which a State may release itself from compliance with an obligation. Article 2.1 creates obligations of means and obligations of result, over time but without any backsliding, that are incumbent on the State party and that State alone. Article 2.1 will fully come into its own when the examination of a communication reveals a breach of an obligation. On the basis of the Committee’s analysis, international assistance and cooperation may be directed knowingly. In other words, cooperation would be forthcoming at the implementation and follow-up stage, ex post, and not ex ante, as grounds for exemption.
As pointed out in the document prepared by the working group’s chairman-rapporteur for the third session, 15 Part IV of the Covenant contains practical provisions relating to cooperation, especially in Articles 22 and 23. They are more prescriptive and recommendatory than comminatory. Nothing could be more counter-productive than for States to try and foist their primary responsibility off on each other by multiplying the excuses for their own failures.
The international cooperation requirement should be seen in a positive light
he international cooperation requirement should be seen in a positive light as fostering full realisation of the guaranteed rights, and not in a negative light, as exempting violations perpetrated by a State. But this non-contentious and non-polemical understanding of cooperation goes hand in hand with the nature of the control that the Committee on Economic, Social and Cultural Rights will exercise. Over a period of almost twenty years, the Human Rights Committee has managed to acquire a quasi-contentious function, by developing a “case law » based on individual communications, where the Covenant speaks only of “findings » and “views”. But the Committee on Economic, Social and Cultural Rights will doubtless be more modest in its start-up phase, taking account of the nature and scope of the communications it receives. Failing communications from States or collective communications that reflect genuine class actions, contentious cases will doubtless be occasional and circumstantial, based on samples of systemic violations. Whatever the findings in a particular case, the aim will be to detect malfunctions of a more general nature relating to either legislation or policy implementation.
More than a quasi-contentious function, the Committee on Economic, Social and Cultural Rights should fulfil a social audit function. Whereas the system of examining reports too often remains confined to generalities, without looking into actual situations, the system of communications will enable light to be shed on individual cases on a human scale. The two systems are complementary in preventing the wood from obscuring the trees, just as they are in preventing the trees from obscuring the wood. But the quasicontentious aspect should be underlined, acting as a flexible form of accountability to which States are held. The very purpose of control would be twofold :
first, the interpretation of obligations, moving towards greater justiciability ;
and second, the detection of malfunctions so that corrective measures can be taken, including in the framework of international cooperation. In this regard, I see the primary purpose of the Protocol as being not to “judge » or “condemn » States, but to make a precise and practical diagnosis based on individual cases and not just general reports. If with time the accumulation of quasi-case law allows the Committee on Economic, Social and Cultural Rights to evolve in the same way as the Human Rights Committee in its contentious function, so much the better, since that will mean that we have moved beyond the false quarrel about justiciability.
Initially, however, the question mark over the justiciability of many provisions of the Covenant merely increases the need for a flexible mechanism for elucidation and recommendation. Effective interpretation of the Covenant must pave the way for progressive implementation.
If that is to happen the current impetus must be preserved, especially as the purpose of the preliminary work is to draw up a simple additional protocol which, by definition, will concern only the States that have signed up to it, insofar as they have done so ratione temporis and ratione materiae. It really would be too much if third countries or States that had signed up only to the International Covenant on Economic, Social and Cultural Rights prevented States party from going further on their own if that is what they wish to do. The Committee on Economic, Social and Cultural Rights has taken a maximalist approach in the past, but it should probably now be more modest. A mechanism needs to be established and allowed to develop gradually, in an experimental manner. The only unacceptable restrictions would be those that compromised the future. For example, an “à la carte » system would result in calling the indivisibility of human rights into question by introducing a posteriori a hierarchy of rights that has no place in the construction of the Covenant, especially as the European Social Charter has been drawn up to offer States options, variants and gradual stages. Likewise, a distinction between “fundamental rights » and second-class rights would be equally unacceptable, especially as the most urgent “basic needs » relating to food, work and housing are the most imperative but the least justiciable. They call as a priority for a mobilisation of public policy and international cooperation through the Millennium Goals.
The most important thing is to make a start, to have something to work with, so as to expand the range of instruments available to the Committee on Economic, Social and Cultural Rights for refining the practical interpretation of the Covenant and ensuring that it is actually put into effect. That sort of pragmatism is essential to any realistic ambition. Let us hope that a group of pioneering States will be able to blaze the trail and demonstrate movement by advancing down it : it is only the first step that is difficult… The European Union, which now defines itself as much by its commitment to human rights as by its attachment to an idiosyncratic “social model”, should find an opportunity for self-assertion and reconciliation around these two great objectives, and be the first to set an example. The major third-world countries which, from South Africa to India, often have very advanced case law on the subject, should also assume leadership of this great movement to strike a new balance in human rights in the name of democracy and development. Only a new North-South coalition will give the universal and indivisible nature of human rights its full meaning. Nantes was a proving ground for this collective determination. May Geneva see its consecration.
(1) : Vienna Declaration and Programme of Action, II, para.75.
(2) : E/CN.4/1997/105. See “La réforme du Pacte international relatif aux droits économiques, sociaux et culturels », our contribution to Mélanges en l’honneur de Nicolas Valticos, Droit et justice, Pedone, 1999, pp.405-415.
(3) : Emmanuel Decaux (ed.), Les Nations Unies et les droits de l’homme, enjeux et défis d’une réforme, CRDH international conference, Pedone, 2006.
(4) : Cf. Frédéric Sudre, “La protection des droits sociaux par la Cour européenne des droits de l’homme: un exercice de jurisprudence-fiction? », Revue trimestrielle des droits de l’homme, July 2003, no. 55, pp. 755-779.
(5) : Judgment in Ibrahim Gueye et al of 13 April 1989, in Sélection des décisions du Comité des droits de l’homme prises en vertu du Protocole facultatif, NU, 2002, vol. 3, p. 107. Contra, Conseil d’Etat, opinion by Dame Doukouré of 15 April 1996 and Diop judgment of 30 November 2001, AJDA 2001, chr. p. 1039.
(6) : E/CN.4/2006/WG.23/2, para. 48 and seq.