Cheffi Brenner, Michel Doucin, Nantes, janvier 2006
Shall existing theme instruments (ILO, Unesco, Committee of the European Social Charter, CERD Committee, CEDAW Committee, etc.), used to evoke individual situations, be undermined through the creation of a general mechanism?
“Human rights are universally established through international standards at International Community level. The United Nations Charter, organisational pillar of the international community, aims at “achieving international cooperation” and managing “international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion” (Article 1.3). The United Nations describes itself as “a centre for harmonizing the actions of nations in the attainment of these common ends” (Article 1.4). This is why its activities endeavour to favour “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion” (Article 55.c)” (Didier Agbodjan)
This being the case, we need to understand how to fulfil such “harmonization of actions to attain common ends”. Shall the fact of adding new mechanisms consolidate it by strengthening those existing or, on the contrary, shall it weaken them? Several expert members of these institutions attended the seminar expressing their unanimous opinion that these existing procedures, whether they be specialised or regional, are incomplete and often short-ranged; thus the creation of a general mechanism would far from weaken them, rather it would enable a more global projection of economic, social and cultural rights, whose protection they are responsible for (I). Procedural solutions also help avoid unnecessary overlaps (II).
I. Protection that is still incomplete and often weakened as regards existing sectoral mechanisms.
The very general opinion was that existing procedures are basically incomplete and/or weak.
Thus, blatant dark holes exist in the quasi-enforceability of all ESCRs: right to education, to health, to social protection and cultural rights, certain rights to work, etc. (Simon Walker).
For example, the confidential procedure governed by the Unesco Committee on Conventions and Recommendations, established by the 104 EX/3.3 Executive Board Decision, primarily only concerns the rights mentioned in paragraphs 13 to 15 of the International Covenant on Economic, Social and Cultural Rights, i.e. the right to education, the right to enjoy the benefits of scientific progress, the right to freely take part in cultural life, the right to information, including freedom of opinion and expression. It further only concerns victim-defined categories : scientists imprisoned for no apparent reason to prevent them from pursuing their research, as well as writers banned from publishing ; students and teachers, generally human rights’activists, having served a prison sentence and who once liberated are unable to take up their studies again or to go and study or teach in countries where they were once accepted, or those belonging to a minority group whose school has been closed, thus preventing them from receiving education in their own language, or even others belonging to a religious community not accepted in their country, thus excluding them from university.
The Unesco Committee on Conventions and Recommendations only meets twice a year. It shall first of all examine the admissibility of communications in accordance with 10 different criteria. Once a communication is declared admissible, it is only examined fundamentally at the time of the next Committee session, wherefrom arises a delay causing injury in terms of satisfying a victim’s needs. Among its other limits, we note the fact that it excludes diversity in information sources without providing the possibility of an on-the-spot inquiry, that it operates in secret without inviting the authors of communications, and finally that the Committee is comprised of State representatives and not of independent experts.
The Committee has succeeded in a number of cases to either modify the laws in the education sector, or to obtain authorisations to leave the country. We would like to emphasise particular cases, though the repercussions often go far beyond. By taking special interest in the outcome surrounding several persons in particular, the Committee has often been able to directly appreciate the repercussions of a given situation on the use of a specific right.
Furthermore, this procedure claims to represent a humanitarian (1) procedure and calls upon a spirit of dialogue from the governments concerned rather that upon the effectiveness of rights. (Simon Walker) The procedure planned within the framework of the Protocol to the Covenant on Economic, Social and Cultural Rights, supported by a Committee on Economic, Social and Cultural Rights in its capacity as a quasi-judicial body, shall nevertheless first recommend States to put an end to violations of rights and to take all necessary measures to remedy matters. The same rights would be apprehended differently before each of the two bodies. The planned protocol can only significantly consolidate and enrich the Unesco procedure (B. Dupuy) which must be kept as an additional solution for difficult cases. (Vladimir Volodine)
The Committee on Conventions and Recommendations has itself expressed opinion that incompatibility does not exist, rather complementarity between the various existing procedures. (also Eibe Riedel) The fact that a same matter can also be examined within another UN Organization shall not prevent the Unesco Committee from examining it too. On the contrary, the 104 EX/3.3 Executive Board Decision has been deliberately drawn up in such a manner to enable the Committee to examine a communication already submitted for consideration by another international organization. For the past 15 years, only one case has been examined jointly within the Human Rights Committee and the Unesco Committee, thus enabling to minimise the threat of redundancy and diverging opinions.
Within the framework of the ILO, a certain number of social rights have been empowered with particular enforceability, consolidated by extensive examples of domestic legal cases from a number of countries where they are enforceable before labour courts. We can quote equal rights between men and women benefiting from the same economic and social rights, the right to a fair salary and to remuneration that is in proportion to the task performed, the right to create associations with other persons and to join the trade union of one’s choice. Having said that, only the International Labour Organization’s Committee on Freedom of Association represents true international enforceability ; such Committee which became known to the general public several years ago for having convicted Burma, and which only deals with one of the aspects of the right to work, seizable only by one of the body’s represented within this tripartite institution (employees’or employers’unions or the States). Such Committee can be seized for charges occurring in countries not having ratified the Convention (Patrick Carrière). It only receives an average of 45 communications per year and may not receive complaints from NGOs. Even though approximately 2,000 trade unionists have been liberated on the account of the Committee since its creation, its influence is considered rather weak. (Pierre Lyon-Caen)
Similar comments to those concerning the operating limits of UNESCO’s and ILO’s procedures have been made by their representatives with regard to other incomplete protection systems. For the Committee on the Elimination of Discrimination Against Women (CEDAW) and the Committee on the Elimination of all forms of Racial Discrimination (CERD), certain difficulties have been notified with regard to the implementation of recommendations.
Beyond the UN system, the European Social Charter has been indicated as covering only a portion of the economic, social and cultural rights. Such Charter provides limited possibilities to protect rights with its “à-la-carte” option principle available to Member States (one only of which having adhered to all options). It only provides the possibility to introduce communications to professional organizations, except for a specific option (rarely chosen) for NGOs. Finally, a recommendations’follow-up mechanism is incorporated into the Charter, which is entrusted to the Committee of Ministers and is generally judged as being inadequate. (Jean-Michel Belorgey)
In such a context, the establishment of a general mechanism, accommodating a wide variety of sources, open to various kinds of communications’authors, transparent and ensuring thereafter a follow-up of its recommendations, can indeed assist in defending other procedures. “Should the Committee’s recommendations intervening after examination of periodic reports or internal recourse not have caused significant changes aiming at restoring them, individual communications shall offer additional means of recourse, the rights accepted in the Covenant having been neglected.” (Paul-Gérard Pougoué)
II. Procedural solutions
An evident first solution was proposed to resolve problems of possible redundancy and inconsistency: to establish and develop reciprocal information links between the ESCR Committee and other human rights special protective mechanisms. Efforts deployed in this sense shall contribute to an improved understanding and to a better interpretation of the Covenant, to clarifying obligations of those State Parties having ratified it, and then to reinforcing surveillance of respect for the economic, social and cultural rights and of their effective application. The Committee of the Covenant on ESCR already implements this harmonisation method. In order to “develop the standards of the Covenant – for example, the obligations of the Covenant in terms of health or education – the Committee has widely used the expertise of specialised institutions, such as the WHO or Unesco, for the purpose of reinforcing the impact of standards developed by these institutions through the Covenant, and of developing their understanding by States. In this regard, the Economic, Social and Cultural Rights Committee already regularly collaborates with the ILO, Unesco, WHO and FAO.” (Olivier de Schutter). Furthermore, the dialogue between the European Social Charter Committee and the European Court of Human Rights not only helps avoid conflicts, but also consolidates the two institutions. This type of relationship provides good cohesion among judicial and quasi-judicial institutions. (Régis Brillat)
Among the other possible solutions to avoid risks of overlapping and interpretation conflicts, it was further suggested to “restrict the new procedure […] to situations revealing a species of gross, unmistakable violations of or failures to uphold any of the rights set forth in the Covenant” (2). The Committee shall, therefore, only be called upon in extremely grave situations to treat individual communications, whereas other internationally - existing mechanisms would have failed to warn or resolve. (Olivier de Schutter)
“Several basic principles of international law enable, among others, to avoid the risk of contradictions when taking stand between legal proceedings summoned for the purpose of giving a verdict on a State’s international obligations (3). Thus, safeguard clauses, known as “the most favourable protection” and usually incorporated in international instruments concerning human rights, enable the coexistence between the different international or internal instruments that may provide for varying levels of protection.” (Olivier de Schutter)
Yet another manner to resolve the problem would be to “define the conditions of an individual communication’s admissibility within the meaning of Article 4.2a) of the Optional Protocol to the Convention on the Elimination of all forms of Discrimination Against Women, which excludes communications where “the same matter […] has been or is being examined under another procedure of international investigation or settlement”. (Olivier de Schutter)
In this regard, is it possible to imagine the removal of the ESCR Committee to the benefit of more specialised bodies? “Based on the assumption that the Committee shall be given a communications’procedure, it shall inevitably query whether files concerning its related themes should be dismissed under Unesco and ILO proceedings. This idea was rejected in view of indivisibility of rights, as well as of the fact that the claims procedures are different (ILO restriction excluding NGOs) and the direction given to the investigation is not the same (amicable settlement with Unesco).” (Eibe Riedel)
(1) : The aim of the UNESCO procedure is not to record a human rights violation, nor to condemn the relevant governments, and even less to take disciplinary action against them: it is rather to improve the fate of alleged victims. Seeking an amical solution is motivated by the humanitarian aspect, the debates being conducted under entire confidentiality.
(2) : Report of the Independent Expert appointed by the Human Rights Commission, UN document E/CN.4/2002/57 (12 February 2002), para. 34. See also the Second Report by the Independent Expert, doc.
(3) : Article 5.2 of the International Covenant on Civil and Political Rights states as follows: “There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent ». This is a classical type of clause : see also, for example, Article 41 of the International Convention on the Rights of the Child, or Article 16.2 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.