Cheffi Brenner, Michel Doucin, Nantes, janvier 2006
Is a loss of sovereignty on issues regarded as political to be feared because of the intervention of an international committee?
Almost all countries now have governments that play an active role in the economic, social and cultural spheres. The fear has been expressed that individual communications could result in the Committee that receives them analysing and criticising national policies, thereby reducing State power, already often subject to considerable external constraints, still further and the issue of finding garantees to avoid such risks was evoked. (Johanne Levasseur)
However, the discussions showed that the risk of loss of sovereignty was not so ineluctable. The experience of other committees shows no evidence of developments of that sort: States remain the main decision-takers. Everything will depend on the strength of the justiciability of the Committee’s procedure.
I. Non-interference by other committees in State affairs
That a committee might broach so-called “political » issues would be neither new nor unique to economic, social and cultural rights. Certain decisions taken by other committees, especially relating to civil and political rights, have similar implications.
Furthermore, in the light of the case law of international bodies before which ESCRs are already justiciable, such as the African Commission on Human and People’s Rights or the European Committee of Social Rights, it is to be expected that communications brought before the Committee will tend much more to concern failure to comply with obligations to respect or protect than with obligations to fulfil. Many examples exist with regard to the right to housing, though they mainly concern redress against forced eviction. By examining cases of this type, the ESCR Committee would have to apply its General Comment No. 7 on forced evictions and, in doing so, to consider above all the justification for such evictions, whether or not prior consultations have taken place with the aim of finding alternative solutions and whether or not the occupants have been offered alternative solutions or other housing. Similar approaches could concern non-access to healthcare or education, cases which would be examined in the light of obligations to respect and protect. (Malcolm Langford).
As regards the International Labor Organisation (ILO), no reservations are admitted. However, there exist flexibility clauses but when a State has taken an engagment it can not take it back. This mechanism could inspire the optional protocol. (Patrice Carrière) “Such a fear seems unfounded in the light of the other committees’actual practice. As committees are not jurisdictions, no committee has the same coercitive power as the European or Inter-American Court of Human Rights.” (Philippe Texier)
II. The preservation of State prerogative
The Committee or body responsible for examining communications, being part of the UN system, would in any event be bound to respect the principle of State sovereignty that prevails in international law. The Committee could be given the mere power to ascertain a violation of rights. This possibility could be envisaged in four hypotheses of violations :
1) policies, laws or decisions adopted by States that clearly violate Covenant rights, such as unacceptable interference in the exercise of freedom of association or the right to strike guaranteed by Article 8 of the Covenant, or forced evictions, or non-compliance with the principle of non-discrimination ;
2) retrogressive measures ;
3) non-compliance with the core obligation of ensuring that minimum guaranteed rights are satisfied ;
4) non-compliance with the obligations of respecting and protecting rights. “In all other cases, and in particular when the defendant State does not comply with its obligation to fulfil, the Committee should not have the power to ascertain a genuine violation of the Covenant. In such cases, its power should be limited to finding that the defendant State does not fulfil its obligations ‘satisfactorily’. This terminology, more respectful of State sovereignty, is better suited to the legal nature of the obligations arising from obligations to fulfil economic, social and cultural rights and the requirement of their gradual realisation.” (Giorgio Malinverni)
In addition, “on the basis of an individual communication brought before it, the question put to the Committee will be whether or not the State’s treatment of an individual, through the action or inaction of its organs, complies with the obligations imposed by the Covenant. In such cases, the ‘justiciability’at issue will always be negative […]: the Committee’s role will be not to give a positive indication of what the State must do in order to comply with its obligations under the Covenant, but to ascertain whether its behaviour complies with those obligations or not. The State will always be able to choose the means whereby it fulfils its obligations under the Covenant. If it transpires from a finding of a violation that a given avenue is not open to it, it can explore other avenues within the limits imposed by compliance with the Covenant. […]
The Committee will not replace the domestic authorities: it is for them and them alone to consider the various solutions available to the State in order to achieve a more satisfactory result. […] Decisions about means lie essentially with State authorities, who have considerable discretion in that regard because it presupposes sufficient expert knowledge and a thorough understanding of the realities specific to each State. Thus, the role of the Committee on Economic, Social and Cultural Rights would be to determine whether the steps taken satisfy the requirements of the Covenant. That in turn depends on the interpretation of those requirements by an independent body supported by a now well-established body of case law (1).
Of course, the separation between the two dimensions is not always absolutely clear. The Committee includes some requirements arising from the Covenant that concern not the result to be achieved but the appropriate means of achieving it, thus moving from identification of an obligation of ‘result’(through means that the State is free to choose) to an obligation of ‘behaviour’(concerning the means to be employed).
However, these means (such as carrying out impact studies, developing indicators and defining national strategies for implementing Covenant rights, including a participatory element) leave the State considerable latitude to decide what measures to take in order to comply with the Covenant. It is incorrect to suggest otherwise, ie, that the Committee would gradually replace national authorities in framing national policies affecting areas covered by the Covenant.” (Olivier de Schutter)
It is therefore up to States to implement the Committee’s recommendations, and they have considerable latitude in how they implement the rights protected by the Covenant. States would continue to play the leading role because they would retain their prerogative of action (Malcolm Langdorf). Such recommendations do not therefore call State sovereignty into question in any way.
III. The strength of the justiciability granted to the Committee
The Committee would have neither a power of cassation, nor a power of appeal or reform, nor a power of injunction. “Its only power, of a declaratory nature, would be that of finding that a State has not fulfilled its obligations arising from the Covenant.” (Giorgio Malinverni)
The many and various forms of arbitration and mediation developed in the English-speaking world have been mentioned for their accessibility to citizens and their effectiveness. The operation of certain “national contact points » set up under the OECD Guidelines on Corporate Social Responsibility has also been cited as exemplary. Claims are brought through one of the components of the system – trade union, employer’s organisation or the State – and examined with the aim of reaching an agreement that will redress any wrongs. If an agreement cannot be reached, the contact point uses various means of communication to make its position public. (Michel Doucin)
“If so as to have executory character decisions must receive a political endorsement, (the Committee of Ministers for the Social Charter of the Council of Europe) there is a risk of incertainty” (Jean- Michel Bélorgey)
“International monitoring carried out in dialogue and discussion, taking account of the various sources of national expression […] is in practice a form of mediation enabling States parties to remedy any limits on the application of norms they have freely ratified. The presentations by Régis Brillat (European Committee of Social Rights) and Professors Oliver de Schutter, Antoine Lyon-Caen and Jacques Fierrens confirm the virtue of monitoring/mediation in putting flesh on the bones of law and bringing legal principle to life : the procedure of bringing the law up to date, revealing new aspects of it […] the precision of a text that allows for monitoring […] monitoring that gives a text its precise scope”. (Didier Agbodjan)
Some have argued that the Committee’s power should be limited to making comparisons between States and providing advice in order to foster change when policies are ineffective in guaranteeing economic, social and cultural rights. States could be more accommodating towards this means of action, which is less intrusive than that of international aid organisations and could possibly have very positive effects as a result.
(1) : Committee on Economic, Social and Cultural Rights, General Comments No. 3: The Nature of States Parties’Obligations (Article 2.1 of the Covenant), adopted at the fifth session in 1990 (UNE/1991/23), paragraph 4: “Each State party must decide for itself which means are the most appropriate under the circumstances with respect to each of the rights […]. However, the ultimate determination as to whether all appropriate measures have been taken remains one for the Committee to make.”