Cheffi Brenner, Michel Doucin, Nantes, January 2006
What could be the concrete substance given to the notion of the international quasi-justiciability of economic, social and cultural rights which respond to the aims to improve policy management, thus enabling its fulfilment?
A pre-seminar exchange of views was arranged gathering together a certain number of country’s officials and domestic administrations, the latter being sceptical as to the usefulness of an individual or collective communications’procedure for improving the effectiveness of economic, social and cultural rights. Such administrations widely spoke up, particularly during the discussions that followed the presentations of the panel speakers for each theme session, to present their opinion and to question those having diverging opinions.
From this debate, three ideas came to light: that fulfilment of the social equity objective, the conclusion of the economic, social and cultural rights exercise, would mean embarking on several routes which must all be complementary (I) ; that several objectives could be assigned to a new appeal procedure at UN Committee level (II) ; and that the extent of the quasi-judicial function for the Committee in charge of receiving communications should be made clear and controlled (III).
I. Limits and interest of the quasi-justiciability with regard to the social equity objective
Here, representatives from Great Britain were able to explain that their institutional system handles a vast range of internal procedures, private mediation to parliamentary court cases passing through judgements in arbitration; in conclusion, a variety of systems having shown their worth. There exists in Britain many possibilities for citizens to obtain satisfaction :
Appeal for decision before a public authority (e.g. social security bodies).
Appeal before specialised courts comprised in general of professional magistrates and assessors from the civil society : for employment, education, health, asylum and social security (in a 2nd network).
The mediators who receive complaints for ill-managed administration : housing, social services, social security. They then refer to the Government or the Parliament to obtain a revision of the administrative decisions having been examined.
The specialised commissions used to intervening at courts : regarding racism, against discriminations. A commission project on equality is now under study. (John Kisane)
In many other european countries, there exist friendly settlement mechanisms for economic, social and cultural rights, in France for instance the Ombudsman (“Médiateur de la République”) who plays an increasing role (approximately 60 000 cases heard in 2004) and has created specialised satellites for example in prisons. (Jean Paul Delevoye)
Thus, the varied technical contents of the economic, social and cultural rights give rise to differing responses and not to a single mechanism. It would also be appropriate to seek repair and correction of the dysfunctions and errors, rather than adopting a doctrinal stance to elaborate standards and sanctions in matters necessitating the integration of many factors and parameters in order to be “just” in accordance with the legal requirements. Thus the reason for certain scepticism as to the interest of adding an international appeal procedure entrusted to a committee that would not have the means to proceed with necessary and complex investigations.
This type of argument, completed by those from countries, such as Canada, the representative of which explaining that their federal structure had entrusted the management of educational and social policies almost entirely to provincial bodies, including those noncontentious (multiple) and contentious claim procedures, was listened to most attentively, especially by developed countries where social mechanisms are very diverse.
A very general agreement resulted, according to which it became appropriate to envisage the creation of a new complementary procedure having the aim of reinforcing all other existing non-contentious procedures at national and sub-national level. Such procedure itself being mainly of a non-contentious nature.
II. The objectives of the procedure
A central idea emerged from this dialectical consideration: that of the quasi-enforceability of economic, social and cultural rights, which should necessarily be coordinated in accordance with the United Nations framework, and which should first aim at enabling the establishment of a dialogue with the States and related public institutions responsible for social and educational policies. It should lead to the identification of the entire range of existing procedures, thus enabling economic, social and cultural rights to become enforceable and more effective: early warning, mediation, arbitration, enquiry, etc. and seeking their improved functioning.
The primary concern shall be, as in the case of the European Committee for social rights, to respect the diversity of traditions and national examples, and to take into account the unequal degree of economic prosperity among the different States. Such diversity among national examples should be considered as positive and meaningful input. It is not a question of bringing everything into alignment with a single model. (Jean Michel Belorgey, 15th meeting of the European Committee for Social Cohesion)
The second objective for a procedure under the aegis of the United Nations could serve to inform other countries of the diverse procedures existing in another country, thereby stimulating certain emulation among them. The improved knowledge of the “best practices” can constitute a decisive element for developing the efficiency of economic, social and cultural rights. In this respect, industrialised countries are a long way off achieving a monopole situation. Experience gained from “thematic rapporteurs » launched by the Brazilian civil society, as well as from the powers of mediation entrusted to certain independent national institutions for promoting human rights in Africa, are as much worth noting as the western practices of ombudsman or of the high authorities in charge of fighting against discrimination. Among the many concrete examples quoted, let us mention Cordoba in Argentina. Groups of underprivileged citizens from this town, excluded from the distribution of drinking water, have taken up court proceedings for violations of a fundamental right. Justice gave them reason, obliging the authorities to intervene ; thus to prevent contagion, the latter was required to define a national policy programme in this area.
“The intra-European consideration of its social example can only be of benefit to an enlargement covering the entire planet : due to the fact that the right to housing be recognised, for example, by the South African constitution and can be taken before its Supreme Court, or that the right to health can be taken before the Indian Supreme Court also on a constitutional basis; these two points providing food for thought in terms of our national social systems and of a social Europe. And without doubt, Latin America, Asia and Africa shall share the same interest, simply because they have undertaken the creation of regional areas, not limited to a trade dimension, but also being common social areas. From one country to another, diverse solutions have been invented to satisfy the needs of social justice, thus the question is raised as to their “regionalisation”, then its enumeration with the universal level.” (Michel Doucin)
The third interest of creating a procedure to make economic, social and cultural rights quasi-judicial lies in the fact that it confirms the contribution of “the approach through rights” to the considerations on the questions of governance, while giving this last a concrete substance. In this respect, the fact was quoted that institutions thought to be closed off to such approach are now showing themselves through development. Thus the World Bank declares, through the voice of its Institute, to have identified strong correlations between the exercise of freedoms and civil rights and the fulfilment of social and economic progress, for example concerning the decline in infant mortality. When voluntary policies for fulfilling rights are implemented, the correlation becomes yet stronger. “Good governance is not a “luxury product” to which a country automatically accedes with its benefits, but rather necessitates a difficult continued commitment for leaders, administrations and the civil society to enable improvement of the civil rights and rights of governance. (1)
The interest of a communications’examination procedure is also to enable the treatment of exemplary cases from which can be drawn judicial precedents. (Emmanuel Decaux) It would enable, from concrete cases, to develop thoughts elaborated, via general observations made by the Committee in charge of periodic examination of the States’reports with regard to their obligations concerning rights of a programme-oriented nature.
The quasi-enforceability coordinated by a United Nations committee receiving case communications, for which the national institutional systems are being accused by the complainants for not having responded to a principle of equity, would thus aim at improving the governance of countries through the spur of the demand for the respect of a right. They would indirectly exert an effect on aid to development, the modalities of which are not always respectful of the economic, social and cultural rights.
The necessary condition for the respect of economic, social and cultural rights in each country shall be the existence of a justice operating in an equitable manner. This is not an inborn fact. It depends upon many elements: materials (remunerations protecting judges against corruption), legal (an autonomous status) and cultural (the ethics of a profession). It has been revealed that these elements are often lacking. The existence of appeal scales being situated in the upper levels constitute, for national justice, even if their power is only quasi-judicial, a means of pressure for a more satisfactory functioning. This is the fourth effect expected.
III. Extent of the quasi-judicial power
The concept of quasi-enforceability has been studied carefully. It would appear that it can receive in various directions. For certain, it is first necessary to distinguish the substantive dimension (the contents of the rights) and the procedural dimension (right given to be referred to these rights). Enforceability must not be compromised by its procedural aspect. Thus the importance for other methods such as mediation. The broader concept of “legal constraint » enables to encompass a wider range of methods for fulfilling rights.” (Valentin Aichele) “Enforceability is not exactly what we think. Between imposing obligations and nothing at all, there exists a whole range of methods. International judges hardly ever impose positive actions on States. […] The international enforceability can be combined with control and advisory mechanisms, as well as support to those seizing institutions. […] An international legal instrument can reveal and benefit from the diversity of the rules in order to draw on the quintessence. International rules do not necessarily become actions ; one has to be inventive to make them effective. […] Enforceability at international level should be perceived as exerting a radial effect: it helps to interpret, to enrich and complete a standard system.” (Antoine Lyon-Caen)
Enforceability and quasi-enforceability also have cultural dimensions. The British tradition rather insists on appeal than on rights: “remedies precede rights”. The common law approach is a maize of judicial rules and specialised laws which do not lend to harmonisation. Thus the importance for a judge to use his prestige to enforce law. (Ghislain Otis) The integration of several forms of enforceability within a protocol creating an individual communications’ exam mechanism concerning ESCRs would enable to take into account the diversity of legal cultures and to avoid taking some of them against the grain. (Jacques Fierens)
One can also consider that a form of indirect enforceability is the democratic control over the functioning of public services, the international quasi-enforceability strengthening it. (Philippe Texier) It makes the judge the referee of the city’s organisation forms. […] Enforceability opens a right to control the way in which public services are organised. It does not give the right to an additional service but to the control of procedures, providing access to such services and thus to a service rendered, as well as, in the long run, to participating further in the political system. (Antoine Lyon-Caen)
Then comes the question of such quasi-enforceability’s instruments of action. Certain have recommended that the Committee is given an injunction right when violations are translated by important risks for persons. It should, for example, be applied in the case of illegal expulsion measures. (Malcom Langford) It has been observed that the ILO disposes of a power to create enquiry commissions, so why not the ESCR Committee ? (Pierre Lyon-Caen) Concerning reparation to victims, we have noted that the practice by international judicial authorities is very flexible: it takes account of the receptiveness of the States to this type of request, and is concerned about possible risks for reprisals against victims. (Malcom Langford)
The average opinion was that the committee in charge of receiving communications relating to allegations of violations of economic, social and cultural rights could only exert a condemnatory power combined with demands for reparations for victims in very particular cases : those involving grave and deliberated violations. And still, a specific option should without doubt be provided on this subject within the protocol. The major part of its efforts should resemble a mediation aiming at an agreement. Even if some of the participants have been reluctant regarding multiplication of procedures (mediation, friendly settlement etc.) because it would delay the mechanisms, (Jacques Fierens) for others, we have to look at the different modalities of justiciability at the international level.
Mediation, litigation, conciliation are not contradictory, there is whole scale. We should think of amical settlement. It should be the first step before going to the other levels (litigation etc.) (Eibe Riedel) The quasi-enforceability in the field of ESCRs should not encroach on the obligations imposed on the States, but rather on public communications to encourage public dialogue with their Parliaments and with civil societies regarding their policies. (Virginia Bras-Gomez). In Belgium, the competent jurisdiction for controlling the respect of the Covenant on the economic, social and cultural rights – is this not called the “Court of Arbitration “? (Jacques Fierens)
For example, if expulsion from housing or a piece of farm land appears justified by a pertinent urban project and has followed a legal procedure, the committee cannot exert any condemnatory power. Nevertheless, putting forward the possible insufficient means through which public authorities have proposed reinstallation, such authority could notify the country’s “good practices » to the comparable socioeconomic, climatic and cultural characteristics and recommend to take heed of them in view of improvement. Privatisation of a social mechanism, up until then entrusted to the public sector, may neither be condemned, except upon demonstrating that it causes discriminations to grave consequences. (Malcom Langford), […] because the Committee must not enter the quarrel relating to the models for developing or establishing economic, social and cultural rights, while respecting a principle of models’plurality. (Virginia Bras-Gomez)
The protocol, by creating a quasi-enforceability supranational level economic, States shall be encouraged to define national policies for fulfilling economic, social and cultural rights, thus rebalancing their priorities. (Virginia Bras-Gomez) The examples brought by experts from the Elimination of Racial Discrimination Committee, the International Labour Organization and the European Social Charter regarding pertinent reforms following appeals brought before such specialised institutions, and accompanied by recommendations by the latter, have been enlightening in this respect.
What would happen if the State concerned by a condemnation from the committee refused to comply with the injunctions? A report having been drawn up with regard to failure to implement the body’s recommendations with regard to treaties in general, the idea materialised that the new procedure could be inspired from that introduced by the OECD for implementing it Voluntary Principles with regard to the social responsibility of multinational enterprises: when its conciliation efforts have failed, the “National Contact Point” makes a solemn declaration through the media underlining that (to be specific) the enterprise has violated the standards in force. Experience has proved that a threat of this type of publicity awarded to violations, has had quite efficient effects to motivate the interested person to seek a compromise. One can imagine a transposition of mechanism for States having violated such and such economic, social and cultural rights and being refused to repair. However, only cases of deliberated violations and of a regressive type, characterised by a refusal to respect and to protect the rights acquired, could lead to such public denunciations.
Finally, through the creation of a universal quasi-judicial procedure, can one expect to improve on the effectiveness of the economic, social and cultural rights ? A rather general opinion recognised four possible ways of progress (Nathalie Mivelaz) :
– An incentive to make political, economic and social reforms by governments, who shall be inspired by suggestions of the practices in other countries, presented to it by the international committee, within a comparative scope.
– Elaboration of an international jurisprudence being imposed progressively on national judicial systems, thus encouraging them to function better in terms of equity and to show more daring compared with economic, social and cultural rights : “the objective of the ESCRs enforceability is, finally, to inspire a more brotherly State”. (Paul-Gérard Pougoué)
– The development of an international legal think-tank helping to clarify the obligations of States, in addition to those of other economic players, with regard to economic, social and cultural rights : for example, the right to water, which is of particular interest to several governments in view of the questions surrounding its concrete use.
– A regular contribution to the regulation of international economic governance by introducing the respect of fundamental rights in the main decision process. “The ESCRs are the only legitimate source able to limit market excess which otherwise risks to also govern such sectors as health, training, etc.” (Antoine Lyon-Caen)
– A contribution to the construction of a more peaceful world, following the example of the doings of “the African Commission on Human and Peoples’Rights (which) assists in reinforcing rights at national level and by repairing deficiencies, particularly concerning the ESCRs. Such being the case, it shall consolidate social peace: absence of judicial recourse favours armed violence.” (Felix Morka)
Anyway, it is necessary to adopt a pragmatic approach, a gradual one. (Michel Doucin)
(1) : Daniel Kaufmann : Human Rights and Development – towards a mutual strengthening ; study cosponsored by thee Ethical Globalization Initiative and the New York Center for Human Rights and Global Justice – March 2004.