Cheffi Brenner, Michel Doucin, Nantes, January 2006
Is it necessary to distinguish, for each of the articles of the Covenant, non-exemption rights and others which would only be enforced on the condition that the States shall have the means to do so?
The economic, social and cultural rights which appear in the obligations carried for the States depend upon their contribution capacities in light of the « complete fulfilment » aspect (as oppose to those which “respect” and “protect”). In this regard, several participants at the seminar echoed the interrogations of certain theoreticians who wondered whether it would not be pertinent to try and identify a “core rights » of rights which would remain non-exempt, or “intangible” based on a the “cogens juice” (Jacques Fierens) according to the theory whereby there exists minimum standard values, which apply universally, and are commonly known as “soft law”. If such minimum is not respected, we shall diverge from the respect of obligations contracted under the ICESCR. (Mamadou Badji)
The debate brought out the danger (I) and the difficulty (II) of such an exercise.
I. The danger of identifying “core rights”
Identifying “core rights”, the respect of which should be obligatory for all world States among the economic, social and cultural rights, all the others thus being of the programmatic type, shall lead to establishing a hierarchy of fact, even if it were to deny, we can indeed say that the rights other than those “non-exempt” are also obligatory, but merit interpretation in accordance with the cultures (food habits, traditions related to the habitat, etc.), the budgetary capacities of the States (which induce choices among priorities of a same level) and adopted political models (liberalism, state control, etc.), it will always be difficult to prevent the reputation weighing on them that they are not of “first necessity”. The notion of a “core rights” tends, therefore, to refute the principle of the indivisibility of human rights.
Though, in addition, the element of subjective appreciation, introduced by this notion regarding how the “non-non-exempt” rights can be fulfilled, rapidly arrives at the idea of a cultural relativism of human rights. For example, we could refrain from considering the right of association at work in certain countries, if necessary, because there exists traditional forms of collective management for professional reports ; and this is indeed true, except that adhesion to such traditional methods rarely occurs through choice, but results from tribal, family or other memberships, and that it is very often a question of methods based on seemingly relational hierarchy, which thus expresses another vision of human rights : if we were to go to the end of our reasoning, and certain do, slavery would only be one of the forms of this other manner to organise socio-professional reports…
Identification of “non-exempt” rights is thus one route, but which presents at least two major dangers, one bringing into question the principle of indivisibility and the other tightly linked to “cultural relativism”. But it is necessary that “we […] overcome the discriminations of ESCR » (Catatrina Albuquerque) intoducing such an hierarchy will not go in the sens of that idea. Other categorisations are incidentally possible: the distinction between obligations of means and result, or, as in Belgium, according to the main criteria of “non-regression” and “non-discrimination”. (Jacques Fierens)
II. The technical difficulty to distinguish the “core rights” of others
There exists in fact traditional “distinguos” which show the road to an identification of the “core rights”. They correspond in part to 10 “millennium objectives”, established in the year 2000 for the New York Summit. For example, the right to a primary education giving access to basic accounting operations and reading. But the increasing complexity of the contemporary world has made more and more arbitrary the varying nature of rights which would materialise the border between primary and secondary education. The mastering of the information technology tool which is mainly part of a secondary level programme, could this not also be considered a current “non-exempt right “? And this all the more so with several countries from the South, who have been capable of training technicians in this field and are demonstrating an exceptional capacity to compensate certain of their development handicaps. The same questions are raised in the area of health : how to distinguish the necessary care for others ?
“During the seminar, the suggestion was raised for the Economic, Social and Cultural Rights Committee to draw up a list of objectives for each right and to negotiate an agreement on the calendar for its fulfilment with each of the State Parties to the Covenant. It would aim at finding a balance between the ideal (their fulfilment to a maximum level) and the reality (the resources currently available).
“[Another] suggestion is that the Economic and Social Committee should develop a list of targets for each economic, social and cultural right and begin a negotiation with each state party to the ICESCR to agree on a schedule of achievement for each right. […] It would have to balance the ideal (maximum attainable level) and the reality (currently available resources). […Another] suggestion is an approach in which the meaning of at least some provisions of the ICESCR would be individually defined, taking into account the actual political, economic, social, historical, and cultural situations of each country and the views and policies of its government. In other words, instead of trying to obtain an agreed uniform interpretation applicable universally, we should strive for an agreed individual interpretation tailored to the situations and needs of each country. In this connection, there is an interesting and useful project that has been undertaken by the Philippine Human Rights Information Center (or PhilRights) in the Philippines. (…It identifies) possible indicators such rights for […] fifteen areas of concerns (…and) for each area, […] a list of relevant provisions of international treaties and declarations is given to show the international standards applicable to the area under consideration. […] As an example, in the section on Education Rights, […] the “rights to free access to education” (is articulated) with the indicators :
(a) free and equal access to basic education ;
(b) availability of free basic education ;
(c) availability and affordability of higher education ;
(d) provision and availability of structures for special education ;
(e) literacy rate ;
(f) functional literacy ;
(g) adequate school facilities ;
(h) an elementary school in each barabguay ;
(i) availability of books free of charge.” (Yozo Yokota)
If the identification route of “non-exempt rights” is not to be rejected because it enables a clear and rich dialogue with each county, it appears, in total, that it does not offer a pertinent perspective of drawing up an additional protocol to the Covenant on economic, social and cultural rights : it presents several risks (including that to open Pandora’s box with the contents of the ESCRs (Eibe Riedel)) and would not supply to the committee in charge of implementing the easy interpretation key.
The general opinion which emerged was that the traditional distinction between obligations to be respected, protected and implemented, without being fully satisfying, offers in this respect more resources. The guiding principles adopted recently by the FAO concerning the right to food, structured by the previously mentioned trilogy, illustrates the interest of this approach. The Economic, Social and Cultural Rights Committee has itself already explored this route in its special comments.
The most promising route is therefore that of the respect of procedures which will progressively clarify the urgency levels in the enforceability (Eibe Riedel). The social rights, like fundamental rights, are by definition undetermined. It is difficult to distinguish between procedure and substance because there is no distinction at all (Frank Cimafranca). Procedure enables to shed light on substance. (Antoine Lyon-Caen) At last, when conceptual issues elucidated, it is through the drafting of a protocol that it can be decided, what within them is can be justiciable. (Michel doucin)