Philippe Texier, Nantes, janvier 2006
A comprehensive consensus on economic, social and cultural rights
There is no question that the Nantes Seminar was successful due to the large number of State representatives who attended (over 40 representatives from 29 countries) and to the fact that a strong consensus on important issues was reached. Even though real progress was noted, there are still some issues that warrant further discussion.
Any misgivings that some States and jurists may have had about the very nature of economic, social and cultural rights with regard to their justiciability were overcome.
The seminar confirmed that the idea is currently accepted that fundamental rights should be indivisible and that economic, social and cultural rights should be given the same importance as civil and political rights.
A large majority of participants seem to agree that the Optional Protocol to be introduced should concern all the rights in the International Covenant on Economic, Social and Cultural Rights, ICESCR (Articles 1 to 15). Since it is an Optional Protocol and States are not obliged to ratify it, it seemed only natural that it contain all the aforementioned
This progress is even more important considering that the State representatives who attended the Nantes Seminar were extremely varied. Naturally, differences remain relating to the comprehensive scope of the Protocol and the mechanisms that should be implemented
to ensure undifferentiated treatment of civil and political rights on the one hand, and economic, social and cultural rights on the other.
However, opinions have sufficiently changed to the extent that it is now widely believed that the working group should move forward to the drafting stage of the Protocol project. This shows that many theoretical obstacles have been overcome and that those remaining can now be overcome at a technical level. More specifically, the idea of actually implementing the justiciability of the ESCRs now seems to be widely accepted.
The seminar also provided an opportunity to address certain apprehensions that States expressed.
When dealing with their objections, it was clearly reaffirmed that the Protocol would not generate new obligations for States. It would only aim to give concrete expression to the obligations that already exist by addressing individual or collective communications that would be presented in the future.
Another issue of concern was the risk of possible duplication between the decisions that the Committee or the body set up to this end could render as follow up to individual or collective complaints and those made by other UN committees such as CERD, CEDAW or even CRC, other instruments such as Unesco and the ILO or regional mechanisms such as European, American and to a lesser extent, African mechanisms.
The seminar showed that this risk does not exist and that conversely, the need is great for a procedure covering all rights for many reasons.
First, none of the bodies review all rights, as is the case for the ILO or Unesco. Regional mechanisms only ensure piecemeal protection: for example, the Protocol of San Salvador on Economic, Social and Cultural Rights only concerns the right to education and the right to organise with trade unions. The European Social Charter Committee is
making less headway in the review of communications than the European Court of Human Rights.
Some rights are not covered by any mechanism, as is the case for the right to health and the right to housing.
Also, some procedures only receive communications exclusively from certain parties, such as trade unions in the case of the ILO for instance. Lastly, the weak point of these procedures was underpinned. Unesco uses a confidential procedure and it is clear that its results
are inferior to what those of a non-confidential individual complaint procedure would be.
Thus, fears of duplication were put to rest. The idea emerged that complementarity would give rise to mutual reinforcement of these mechanisms. This would provide a better understanding of all rights and as a result they would be better protected.
Consequently, as is the case with other various Optional Protocol bodies such as the ILO, States should not be able to submit reservations to the Protocol, one of whose essential benefits would be to cover all economic, social and cultural rights. For these
rights are currently covered in an incomplete way.
Issues still being worked on
A three-day seminar could not achieve full agreement on all issues addressed. It seems that the seminar highlighted a number of issues for which a consensus was not reached that call for a draft with several options.
The issue of bodies authorised to file communications to the Committee, and the body in charge of reviewing them, is still under discussion. On its own, the ESCR Committee proposed a possibility in its draft Protocol with a very broad outreach for communications suggesting that they be individual or collective, i.e. open to trade unions and NGOs. The fact that this possibility has been offered to both individuals and groups does not seem to
pose any problems in and of itself: the unions can for example refer their cases to the European Social Charter Committee or the ILO. The only real difficulty could concern the opening up of the communications procedure to groups acting on behalf of one or
several individual on the basis of the violation or their (his/her) rights, without any expressed mandate of the person. The NGOs put forward the idea that some people did not have the standing to file communications for security reasons or because they are poor. In these cases, it seems necessary to ensure that they have access to mechanisms for defending their rights. This is why third parties need to be able to act on their behalf. If this possibility was offered, a way must be found to ensure that the complaint is made in
the name of the victim, possibly through a mandate issued by the victims themselves.
Other fears were expressed with respect to the idea of international assistance and cooperation in Article 2 (1) of the ICESCR. The Committee has always differentiated States that do not realise economic, social and cultural rights on account of a real lack of economic means from those that do not due to a lack of political will. This differentiation could be precised and reinforced by a mechanism that could be introduced by the Optional Protocol to the ICESCR on the basis of concrete cases. On the other hand, the Protocol should state that the Committee be very cautious when
it comes to the possible involvement of countries providing assistance. It should not identify States who do not devote a large part of their budget to international cooperation, but rather study the way in which they carry out this cooperation. In other words, the aim is to carry out a qualitative rather than quantitative assessment of the efforts made. The review of international cooperation should never lead to the condemning of a State, but be an analysis of the “duty” of cooperation provided for in Article 2 (1) of the ICESCR.
Points for discussion remain and several solutions are possible that would not reduce the scope of the Protocol. Discussion remains open, whether it concern the possible creation of an emergency mechanism, the issue of following up on Committee recommendations or even the possibility of surveys in the field. No common lines were determined in the seminar concerning these issues. On the one
hand some, including the NGOs, are in favour of a mechanism that would be as intrusive as possible. But on the whole, States exercise caution with regard to these issues. Thus, a definite position could not be determined on what an optimum mechanism and a minimum
mechanism would be in which the Committee would not have all the powers that some groups from civil society would want to see it granted.
However, I would like to reiterate that the Nantes Seminar enabled real progress on a certain number of essential points to be made, which shows the large consensus behind starting the drafting of the Protocol. This stage will certainly provide an opportunity to find solutions for issues which are still open for discussion.
The working group who will meet next February should move forward in this direction and ask the Commission on Human Rights to provide it with a mandate to draft the Protocol.