Cheffi Brenner, Michel Doucin, Nantes, January 2006
How can an international jurisdiction evaluate the political, social, and cultural conditions of an individual situation?
A priori, an international committee appears to dispose of resources that are insufficient as regards understanding to what extent economic, social and cultural rights are respected, protected and implemented in a country, since this depends on the implementation of several policies under the aegis of different authorities, and must be seen from different perspectives as regards the role of the State, as well as against a cultural background that attributes to private charity more or less importance, etc.
It has become apparent that any examination of communications should try to understand each situation as a whole, focusing nevertheless on the quality of the action of the State in question (I) ; and that the Committee could have recourse to expertise which its own experience in the examination of periodic reports has allowed it to acquire (II).
I. An examination focused on the quality of State action
It is first and foremost the responsibility of the State vis-à-vis the individual situation which will be in question during the communication procedure.
Indeed, “the type of justiciability” which is required in the major clauses of the Covenant is indirect in nature: whether what the State has done constitutes a State action or a State omission, it is still what the State has done (namely, the result of its legislative, executive or judicial branches) that will be examined, and not the situation that the individual is directly confronted with and of which he is the victim. The State can be reproached for not having respected the right in question, or for not having taken the necessary measures to ensure their implementation: it is always the failure of the State which is the question, and to which responsibility for the situation must be assigned before the State can be called into question […] [This] requirement that the situation in question must be imputable to the State – which is referred to as “indirect” justiciability of the Covenant – means that it is not the situation of the individual which is directly in question, but this situation only inasmuch as it can be related to a failure of the State which, for example, has not taken the measures one could expect to deal with a famine or to fight an epidemic. […]
Thus, the question of the “justiciability” of the international Covenant on Economic, Social and Cultural Rights must not be seen as a question of knowing whether the right to work, the right of every individual to social security, or the right of every individual to a standard of living sufficient for himself and his family have a meaning sufficiently concrete for the Committee on Economic, Social and Cultural Rights to base the respect or the non-respect of these rights on clear criteria. The question is rather to know whether the obligations that the Covenant imposes on the States, starting from different rights, are sufficiently defined, not in order to allow the Committee to indicate in detail which measures must be taken, but in order to allow the Committee to identify in the head of State certain types of conduct that constitute a clear violation of these obligations. It is more advantageous in this respect to debate the justiciability of the obligations that the Covenant imposes on the States rather than the justiciability of the rights that the Covenant recognizes as regards individuals: indeed, any violation found by the Committee after individual communication will be based not only on the evaluation of the situation of the individual but also, necessarily, on the evaluation of the conduct of the different organs of the State, which can be judged as satisfactory or not.” (Olivier de Schutter)
II. An important experience
To question the capacity of the State to understand a given context is to forget that the Committee on Economic, Social and Cultural Rights has almost 20 years of acquired experience in the analysis of periodic reports from a great number of States, which has been the foundation of a thoughtful and prudent analysis of the advantages and disadvantages different doctrines in economic policy.
The analysis of periodic reports from the States is the foundation of knowledge as regards the particular situation in a given country. The example of the CERD is an interesting one. Indeed, “desirous of affirming the indivisibility of all rights, [the CERD] has tried, in its analysis of State reports, to go beyond a simple verification on a right-by-right basis of the application of the principle of banning racial discrimination. It has moved in the direction of a more global analysis, by studying to what extent the social, economic and cultural context of a given country may contribute to discriminations vis-à-vis certain groups of the population, not only in their civil and political rights but also in their economic, social and cultural rights. In this perspective, the CERD has, for the last few years, made sure that the States give it information as regards “socio-economic indicators” which have allowed the CERD to identify, if need be, the social groups most exposed to marginalization and exclusion, and as a result, to the risk of racial and ethnic discrimination.” (Régis De Gouttes) This procedure could serve as an example for the Committee on Economic, Social and Cultural Rights, or for any other body responsible for receiving communications.
Although the question of giving the examination of the periodic reports and the examination of complaints to two different bodies was evoked during the seminar, it became apparent to the majority of participants that the combination of these two functions in the hands of a single Committee would allow the best use of the expertise it has acquired and would serve to enrich it further. “As compared to a body only dealing with complaints, the existence of a parallel state party reporting procedure will enrich the consideration of complaints by strengthening the members’expertise on country situations, calling for treaty interpretation that takes into account also positive state obligations and assisting the body in addressing allegations made under the complaint procedures through a holistic and interdependence-based reading of the treaty.” (Martin Scheinin)
The possibility for the Committee, with the agreement of the governments, to send experts on assignment to study concrete situations in the field will promote a better understanding of the different country contexts even if some have considered that states may be reluctant to accept inquiries from the Committee, particularly on questions related to the right to selfdetermination. (Ghislain Otis).