Cheffi Brenner, Michel Doucin, Nantes, janvier 2006
How can the Committee’s doctrine, according to which States are asked to take only « reasonable » steps in proportion to the resources available to them, be consolidated?
Some fear that the Committee receiving communications might be tempted to exercise a kind of excessive symbolic justice with the aim of imposing international standards.
An opinion has emerged that the Committee, examining practical and doubtless complex cases, would be bound to confirm the idea that economic, social and cultural rights are exercised in contexts that predetermine them, possibly coming into conflict with other rights, like property rights versus housing rights, between which balanced trade-offs will have to be made. However, it is above all the genuine intention of States that should be central to the examinations carried out by the body responsible for examining communications.
I. States’good faith as the principal criterion of appreciation
Many States with highly vulnerable populations are often the locus of conflicts and natural disasters. Budget resources are also often insufficient to meet government policy needs in healthcare, education, planning, transport, etc.
There is little reason to imagine that the Committee will depart from its vision to date when examining States’periodic reports, whereby States were in principle assumed to make a fair assessment of the best possible allocation of their available budget resources between sovereign functions, like defence and security, and those devoted to social and educational policies that realise economic, social and cultural rights. “The Committee’s experts monitor application of the International Covenant on Economic, Social and Cultural Rights on the basis of information, including statistical data, provided and defended by States. The efforts made by the State to implement substantive rights under the Covenant can be verified from this information. Many reports note the positive efforts and acknowledge the legitimate difficulties that some States encounter in implementing the Covenant.” (Didier Agbodjan)
“Implementation of Covenant rights is clearly linked to the establishment of a timetable, itself dependent on the available resources. Before ascertaining a violation of a right guaranteed by the Covenant, the Committee should endeavour to distinguish […] cases where the individual communication originates in the unwillingness or negligence of a State to respect, protect or fulfil a right guaranteed by the Covenant and cases where the State is objectively incapable of fulfilling the rights guaranteed by the Covenant.
[…] A same State should be totally exonerated when it invokes lack of resources to justify an objective incapacity to fulfil its obligations under the Covenant if it furnishes proof that it has done its utmost to use all available resources in order to fulfil its obligations. The Committee should of course allow States a considerable though not unlimited degree of latitude in their assessment. The State should provide proof that it has, in good faith, taken all reasonable steps that could be expected of it.” (Giorgio Malinverni)
In addition, although a State should not be allowed merely to assert a general lack of resources or insufficient development to justify a failure to guarantee the essential content of a right, it must be allowed to assert that circumstances beyond its control (like a natural disaster or armed conflict, combined with a refusal of assistance or international cooperation from other States) have prevented it from being able to respect even that minimum level of obligation.
In General Comment No. 15 on the right to water, the catalogue of fundamental obligations attached to the essential content of the right (1) does not seem to prevent developing States in particular from being able to justify their failure to fully guarantee that essential content on the grounds of insufficient international cooperation to remedy their lack of resources.
The Committee emphasises that “it is particularly incumbent on States parties, and other actors in a position to assist, to provide international assistance and cooperation, especially economic and technical, which enables developing countries to fulfil their core obligations”. Thus, a State’s failure to fulfil its core obligations under the Covenant does not invalidate the distinction between the State’s inability and its unwillingness to act (2). Although the State cannot use a lack of resources to justify a failure to fulfil certain obligations of a procedural nature, in particular that of monitoring the extent of realisation and non-realisation of Covenant rights or framing strategies for their effective realisation (3), the possibility cannot be ruled out of the State being confronted by a situation of force majeure within the meaning of Article 23 of the Articles of the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts, (4) which prevents it from entirely realising the essential content of each right. (5)» (Olivier de Schutter)
“Ratifying the Covenant implies that the States parties bring their national legislation into conformity with the Covenant, take immediate steps to implement the core obligations and gradually realise economic, social and cultural rights by developing short - medium - and long-term programmes to the maximum of their available resources, including through cooperation and international assistance.” (Virginia Bras Gomes)
“Although the realisation referred to in Article 2 of the Covenant on Economic, Social and Cultural Rights is all-embracing in scope, States parties are required to justify their sovereign policies to realise rights before the Committee only in relation to both domestic and international contextual parameters. According to the principles of obligation under the Covenant and the obligation to cooperate in good faith with the Covenant’s monitoring mechanisms, the States parties must in practical terms demonstrate fulfilment by all means, including legislative norms enshrining the rights and available mechanisms for redress in domestic law, the withdrawal of policies, laws or decisions that violate economic, social and cultural rights or constitute inadmissible interference when exercised, principles of self-determination, non-discrimination and gender equality, the minimum content of economic, social and cultural rights essential for human dignity, and gradual achievement if the available resources permit.” (Didier Agbodjan)
II. A pragmatic assessment of situations
“The Covenant on Economic, Social and Cultural Rights also sets out the conditions for examining situations insofar as, in a way, it subordinates the realisation of economic, social and cultural rights to States’real capacities. Article 2.1 states that ‘Each State Party to the present Covenant undertakes to take steps, individually and through 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’. Article 2.3 states that ‘Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.’» (Vincent Zakane). What applies to non-nationals may, within limits to be defined, be extended to all others.
It is also worth noting that the notion of “reasonableness » narrows the margin of interpretation left to the Committee. (Espejo Yaksic)
“Precise information and specific investigations corroborated by the general information contained in State Reports will make it possible to measure the responsibility or otherwise of States. It is also for that reason that a universal, quasi-jurisdictional mechanism will have the advantage, through judicial construction, of constituting increasingly precise criteria for interpreting Covenant rights.” (Didier Agbodjan)
In addition, granting reparations at an international level will be an indicator of the need to ensure effective compensation at national levels where they are not realised. (Virginia B. Gomes)
(1) : It is the obligation “To ensure access to the minimum essential amount of water, that is sufficient and safe for personal and domestic uses to prevent disease; to ensure the right of access to water and water facilities and services on a non-discriminatory basis, especially for disadvantaged or marginalized groups; to ensure physical access to water facilities or services that provide sufficient, safe and regular water, that have a sufficient number of water outlets to avoid prohibitive waiting times and that are at a reasonable distance from the household ; to ensure personal security is not threatened when having to physically access to water; to ensure equitable distribution of all available water facilities and services; to adopt and implement a national water strategy and plan of action addressing the whole population […]; to monitor the extent of the realization, or the nonrealization, of the right to water; to adopt relatively low-cost targeted water programmes to protect vulnerable and marginalized groups; to take measures to prevent, treat and control diseases linked to water, in particular ensuring access to adequate sanitation” (General Comment No. 15: The right to water (Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), adopted at the twenty-ninth session in 2002. Document UN E/C.12/2002/11, 20 January 2003, para. 37).
(2) : Committee on Economic, Social and Cultural Rights, General Comment No. 12: The right to adequate food (Article 11 of the Covenant), adopted at the twentieth session in 1999 (UNE/C.12/1999/5), para. 17 (“In determining which actions or omissions amount to a violation of the right to food, it is important to distinguish the inability from the unwillingness of a State party to comply »).
(3) : Committee on Economic, Social and Cultural Rights, General Comment No. 3: The nature of States parties obligations (Article 2, par. 1 of the Covenant), adopted at the fifth session in 1990 (UNE/1991/23), para. 11 (“even where the available resources are demonstrably inadequate, the obligation remains for a State party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances. Moreover, the obligations to monitor the extent of the realization, or more especially of the non-realization, of economic, social and cultural rights, and to devise strategies and programmes for their promotion, are not in any way eliminated as a result of resource constraints”).
(4) : UN A/56/10 (2001). The United Nations General Assembly noted the Draft articles on the Responsibility of States for Internationally Wrongful Acts (UNGA, Res. 56/83 (2001). Article 23.1 states that “The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation ». Force majeure includes absolute material impossibility beyond the State’s control ; mere difficulty in fulfilling its international obligation does not exempt the State from its obligation.
(5) : In his attempt to summarise the case law of the Committee on Economic, Social and Cultural Rights, the independent expert H. Kotrane takes an ambiguous position: «…each State party has a minimum core obligation to ensure the satisfaction of the basic content of each of the rights contained in the Covenant. A State in which many people lacked the basics – food, primary health care, housing or education – would ostensibly be failing in its obligations under the Covenant and would thus be violating an obligation of result […]. In all cases where a State party fails to fulfil an obligation of result, its liability should be incurred and recognized from the moment that, through its action or its manifest inaction, the State causes actual damage to individuals or groups of individuals who claim to be victims » (E/CN.4/2003/53 (13 January 2003), para. 24 and para. 51a). Failure to achieve the result does not seem sufficient per se for the State to be held responsible if the failure is not attributable either to the State’s action or to its deliberate inaction.