Cheffi Brenner, Michel Doucin, Nantes, janvier 2006
How can an international procedure be put in place in order to receive individual or groups communications after all domestic recourse has been exhausted, when public responsibility for economic, social and cultural rights lies with local governments or authorities, particularly as is the case in States with federal governments?
This complex question interests a certain number of States of a federal nature. There can be no general solution, since the question requires an in-depth, case-by-case analysis as regards the allocation of roles with regard to responsibility for public policy and the administration of justice (including mediation responsibilities) in the area of economic, social and cultural rights. Several participants have nevertheless attempted to lay out some basic principles.
“States committed by international treaties which they have ratified are required to implement these on a national level in accordance with the specificities of the internal organization of their governments. Indeed, the local structures of government may be considered as divisions of the State, along with the requisite nuances. As regards monitoring with the universally applicable methods, it must be emphasized that the State-party is considered from the viewpoint of its national entity as a whole, whatever the internal methods of government may be. Thus it is by this approach that national responsibility is established as one and indivisible. This consideration corresponds to the realities of the hierarchy of norms and methods of recourse. It is the role of the State to comply with international obligations even if the places of implementation are decentralized or autonomous within the State. (Thus, in a case concerning Canada, experts on the Committee on Economic, Social and Cultural Rights (E/C.12/Q/CAN/2 and E/C.12/4/Add.15) asked Canada for ‘detailed information concerning the manner in which the Committees (federal, provincial and territorial) of civil servants […] and the federal, provincial and territorial Committees of relevant ministers […] dealt with questions concerning the implementation of the Covenant and the conclusions of the Committee’. In terms of implementation, experts questioned the federal government and the provincial governments as regards the measures adopted, not only by the federal government but also by the provincial government, with the aim of finding solutions as regards certain worrisome situations previously noted.” (Didier Agbodjan). A universal method of recourse can bring together useful information relating to the internal organization of each State so as to allow it to localize the different levels of responsibility, even if, in the end, the responsibility for what happens on the national territory lies at the national level of the State-party (either alone or indivisible with specific territorial units).
On the domestic level of each State, when a decentralized judicial system exists, it can be considered that this will be the first level of examination that must be taken into consideration before any recourse before the Committee. “In this way, the Supreme Courts in the federal States will be motivated to play their role as the prevailing judicial arbiter in the federal States as regards these rights, and will play a role as well in the harmonization and protection of these rights.” (Michel Doucin)